Opinion
No. 14-03-00432-CR
Opinion filed June 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 930,445. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant Ray Anthony Granados was convicted by a jury of burglary of a habitation and, after pleading true to two enhancement paragraphs, sentenced to seventy years' confinement in the Texas Department of Criminal Justice, Institutional Division. See TEX. PENAL CODE ANN. § 30.02(a)(1), (d), 12.32, 12.42(d) (Vernon 2003). On appeal, appellant challenges his conviction by five points of error. We affirm.
I. LEGAL SUFFICIENCY OF THE EVIDENCE
In his first point of error, appellant contends the evidence is legally insufficient to prove that at the time he entered the complainant's house, he possessed the requisite intent to commit an assault. Appellant was indicted for burglary of a habitation with intent to commit an assault, which is defined in Texas Penal Code section 30.02, subsection (a)(1), as follows: "A person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault." TEX. PEN. CODE ANN. § 30.02(a)(1) (Vernon 2003). Appellant claims there was little or no evidence of his intent at the time of entry. When reviewing the legal sufficiency of the evidence, we view all of the evidence in a light most favorable to the prosecution to 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 (1979). The jury is the sole judge of the credibility of the witnesses, and chooses whether to believe or disbelieve all or part of a witness's testimony. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim. App. 1988). Thus, if there is evidence that establishes guilt beyond a reasonable doubt, and the jury believes that evidence, we are not authorized to reverse the judgment on sufficiency of the evidence grounds. McGee v. State, 923 S.W.2d 605, 608 (Tex. App.-Houston [1st Dist.] 1995, no pet.) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988)). Three witnesses testified regarding appellant's intent at the time of entry: Robert Baca, the complainant; Jacalyn Kiser, Baca's girlfriend; and appellant. Baca testified that on the night of the incident, he and Kiser were at a barbeque at Kiser's aunt's house, and they did not return home until approximately 1:00 a.m. Baca and Kiser then drove to the convenience store located approximately three to four blocks away to purchase cigarettes. After returning home from the store, there was a knock at the door. Baca answered the door, but before he was able to identify who was at the door, appellant hit him in the face. Baca testified appellant was yelling "you stole my drugs" as he continued to assault him. Kiser's testimony is substantially similar to Baca's. Kiser testified she was in the bedroom when she heard appellant yell "you stole my drugs." After seeing appellant charge toward Baca, she sprayed appellant with pepper spray and retreated to the bathroom. Baca was transported by ambulance to the emergency room, where he was treated for four fractures to the face and injuries to his throat. Appellant's version of the events is significantly different. Appellant testified he had been suppling cocaine to Kiser for about two years, and on the night of the incident, Kiser owed him forty dollars for cocaine he had given her earlier that evening. Appellant claims he and Baca began arguing in a nearby street about the money, and, in order to keep from drawing attention, appellant decided to run to Baca's house. Upon arriving at Baca's house, appellant opened the unlocked door and waited inside for Baca to arrive so that he could collect his money. Appellant testified he and Baca started fighting about thirty minutes after Baca returned home. Intent, as an essential element of the offense of burglary, must be proved by the State beyond a reasonable doubt, and cannot be left simply to speculation and surmise. LaPoint v. State, 750 S.W.2d 180, 182 (Tex.Crim.App. 1986); Coleman v. State, 832 S.W.2d 409, 413 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). Because intent is a fact question for the jury, it may be inferred from the surrounding circumstances. LaPoint, 750 S.W.2d at 182. Additionally, mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs. Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998). The intent to commit a felony or an assault must exist at the time of and accompany the entry into the habitation. Coleman, 832 S.W.2d at 413. If the intent to commit the assault is formed after the entry, the crime of burglary has not been established. Id. However, the jury is exclusively empowered to determine the issue of intent, and the events of a burglary may imply the intent with which the burglar entered the habitation. Id. Under Texas Penal Code section 30.02, subsection (a)(1), the State is not required to prove an assault occurred. Jacob v. State, 892 S.W.2d 905, 909 (Tex.Crim.App. 1995). Rather, the State must show only that the defendant intended to commit such assault. Id. In this case, a rational jury could have found beyond a reasonable doubt appellant entered Baca's home with the intent to commit an assault. Macri v. State, 12 S.W.3d 505, 507 (Tex. App.-San Antonio 1999, pet. ref'd) ("reconciliation of conflicts in the evidence is within the exclusive province of the jury"). The jury obviously believed Baca's and Kiser's testimony regarding appellant's assaultive conduct immediately after he entered Baca's home. Relying on this testimony, a rational jury could infer appellant's intent to commit an assault existed at the time of and accompanied the unlawful entry into Baca's home. Inasmuch as the evidence is legally sufficient to support the jury's implied finding that appellant had the requisite intent upon entry into Baca's home, and this is the only element challenged on appeal, the evidence is legally sufficient to support the jury's verdict of guilt. We overrule appellant's first point of error.II. JURY CHARGE
In his second point of error, appellant alleges the trial court erred in including a "knowingly" instruction in the jury charge's definition of assault because the indictment required the State to prove appellant intended to commit an assault. We disagree and hold there was no error in the charge. When reviewing a charge for alleged error, we must examine the charge as a whole, considering the relationship between the abstract or definitional paragraphs and the application paragraphs. Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.-Dallas 1998, pet. ref'd). It is the function of the charge to lead the jury and to prevent confusion. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). However, abstract statements of the law that go beyond the allegations in the indictment will not present reversible error when the court's application of the law to the facts effectively restricts the jury's deliberation to the allegations in the indictment. Grady v. State, 614 S.W.2d 830, 831 (Tex.Crim.App. 1981) (finding no error because application paragraph properly applied the law as alleged in the indictment, even though surplus words were contained in abstract portion of charge). The abstract paragraphs serve as a glossary to help the jury understand the terms used in the application paragraphs of the jury charge. Id. In this case, the relevant application paragraph of the jury charge is as follows:Now, if you find from the evidence beyond a reasonable doubt that on or about the 14th day of October, 2002, in Harris County, Texas, the defendant, Ray Anthony Granados, did then and there unlawfully, with intent to commit an assault enter a habitation owned by Robert Baca, a person having a greater right to possession of the habitation than the defendant, without the effective consent of Robert Baca, namely, without any consent of any kind, then you will find the defendant guilty as charged in the indictment.The abstract portion of the jury charge included definitions for the relevant terms included in the application paragraph, including the definition of assault. The charge defined assault according to Texas Penal Code section 22.01 as either (1) intentionally or knowingly causing bodily injury to another; or (2) intentionally or knowingly threatening another with imminent bodily injury. See TEX. PEN. CODE ANN. § 22.01(a) (Vernon 2003). After defining assault, the charge set forth the definitions of "intentionally" and "knowingly." However, the application paragraph authorized the jury to convict only if it found appellant unlawfully entered the habitation with the intent to commit an assault, the same requirement found in the indictment. Thus, the jury could convict only if it found all and only those elements necessary for a conviction. See Lewis v. State, 815 S.W.2d 560, 562 (Tex.Crim.App. 1991). In this case, the definitional paragraph defined two of the culpable mental states for assault, intentionally and knowingly. By including the definition of the latter, the charge referred to a mental state of a lesser degree than intentional, the culpable mental state for burglary under Texas Penal Code section 30.02, subsection (a)(1). See TEX. PEN. CODE ANN. § 6.02(d) (Vernon 2003). However, both the indictment, and the application paragraph in the jury charge referred only to appellant's intent to commit an assault. Additionally, both appellant's counsel and the State argued the proper mens rea of intent during closing arguments. The application paragraph, which tracked the indictment and the penal code, used only an "intentionally" mens rea; thus, the jury was not permitted to convict appellant on a lesser mens rea of "knowingly." See Lewis, 815 S.W.2d at 562. Because the application paragraph restricted the jury's consideration to the correct culpable mental state, no error is shown. Reading the charge as a whole, we find it was not confusing so as to mislead the jury. In the absence of any error in the charge, appellant's second point of error is overruled.
III. MOTION FOR CONTINUANCE
In his third point of error, appellant alleges the trial court erred in denying his motion for continuance. Appellant's counsel moved for a continuance immediately before opening statements, claiming appellant had just informed him moments before of two additional witnesses, known only by a first name, needed to confirm appellant's version of events. Appellant claims that because he satisfied the requirements of article 29.06 of the Texas Code of Criminal Procedure and the trial court denied the motion without explanation, the trial court must have abused its discretion because there "were no guiding rules or principles evident in the trial court's decision." Appellant, however, failed to comply with articles 29.03 and 29.08 of the Texas Code of Criminal Procedure, which require all motions for continuance to be in writing and sworn by a person having personal knowledge of the facts. TEX. CODE CRIM. PROC. ANN. art. 29.03, 29.08 (Vernon 1989); Woodall v. State, 77 S.W.3d 388, 401 (Tex. App.-Fort Worth 2002, pet. ref'd). A motion for continuance not in writing and not sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex.Crim. App. 1999). Here, appellant's motion is neither written nor sworn; therefore, nothing is presented for our review. Appellant's third point of error is overruled.IV. JURY ARGUMENTS
In his final two points of error, appellant contends his conviction should be reversed because the prosecutor's jury arguments were improper. In order to preserve such a complaint for review, the party must show he timely objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). "[A] defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Id. When complaining about improper jury argument, the proper method of pursuing an objection to an adverse ruling is to (1) object, (2) request an instruction to disregard, and (3) move for a mistrial. Sawyers v. State, 724 S.W.2d 24, 38 (Tex.Crim.App. 1986), overruled on other grounds by Watson v. State, 762 S.W.2d 591, 599 (Tex.Crim.App. 1988). If the trial court sustains the objection, the party must request an instruction if an instruction to disregard could cure the prejudice from the improper argument. McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim. App. 1998). Thus, to preserve error, the objection must be pressed to the point of obtaining an adverse ruling, whether that is a ruling on the objection, the request that the jury be instructed to disregard, or the motion for mistrial. Cooks v. State, 844 S.W.2d 697, 727-28 (Tex.Crim.App. 1992) ; Campos v. State, 946 S.W.2d 414, 417 (Tex. App.-Houston [14th Dist.] 1997, no writ). Appellant complains of two statements made by the prosecutor, one during closing argument at the guilt/innocence phase of trial and one during closing argument at the punishment phase of trial. Appellant complains of the following arguments made by the prosecutor during the guilt/innocence phase of trial:Prosecutor: When you go back to your jobs and this is all over with and you're talking to somebody, one of your co-workers, hey, where you been the past day or two. I was on jury duty. What kind of case was it? Burglary with intent to commit assault. What if you find him not guilty?
Defense Counsel: Objection what the co-workers might think of their verdict, Your Honor.
The Court: That's sustained.The trial court sustained appellant's objection; therefore, appellant was granted all the relief he requested. Because appellant failed to pursue his objection to an adverse ruling, any alleged error made by the prosecutor during closing arguments at the guilt/innocence phase of trial is waived. Cockrell, 933 S.W.2d at 89. Appellant also complains of improper prosecutorial arguments made during the punishment phase of trial. Specifically, appellant complains of the following:
Prosecutor: [Complainant] is okay now. He's going to go on. But what about the next person? What about the person after that? Because you know that Mr. Granados will be back.
Defense Counsel: That's outside the record, Your Honor. I object to it.
The Court: All right. That objection is sustained.
Defense Counsel: Would you instruct the jury to disregard?
The Court: Don't consider the last remark for any purpose, ladies and gentlemen.An instruction to disregard will normally cure any error, and we presume the jury complied with the instruction. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App. 2000) (en banc). Here, appellant's objection was sustained and the trial court instructed the jury to disregard the statement. Appellant has no basis for a complaint on appeal because the trial court granted appellant all the relief he requested. In order to preserve such an issue, appellant was required to press his objection to an adverse ruling; however, because appellant did not request a mistrial, this issue has not been preserved for review. Cockrell, 933 S.W.2d at 89. Accordingly, we overrule appellant's fourth and fifth points of error. Having overruled all of appellant points of error, we affirm the judgment of the trial court.
The indictment provides:
. . . RAY ANTHONY GRANADOS, hereafter styled the Defendant, heretofore on or about October 14, 2002, did then and there unlawfully, with intent to commit ASSAULT enter a habitation owned by ROBERT BACA, a person having a greater right to possession of the habitation than the defendant and hereafter styled the Complainant, without the effective consent of the Complainant, namely, without any consent of any kind.