Lomas v. State

• Decision Date: 06 June 2013
• Docket Number: NUMBER 13-10-00242-CR
• Parties: ROMEO LOMAS, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

ROMEO LOMAS, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBER 13-10-00242-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Delivered: June 6, 2013

On appeal from the 105th District Court

of Kleberg County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez

By four issues, appellant, Romeo Lomas, appeals his conviction for abuse of official capacity by misuse of government property, services, personnel, or any other thing of value belonging to the government, the use of which is valued at $20 or more but less than $500, a class B misdemeanor. See TEX. PENAL CODE ANN. § 39.02(a)(2),(c)(2).¹ In his first and second issues, appellant challenges the sufficiency of the evidence to support his conviction. In his third issue, appellant contends that the trial court erred in permitting challenges to jurors on an improper basis. In his fourth issue, appellant argues that the trial court erred in improperly admitting evidence of alleged prior bad acts. As set forth below, we sustain appellant's fourth issue, reverse the judgment of the trial court, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Appellant has been the County Commissioner representing Precinct Four in Kleberg County for approximately 30 years. On September 30, 2009, a Kleberg County grand jury indicted appellant for abuse of official capacity. See id. In relevant part, the indictment alleged as follows:

[O]n or about March 2, 2009, in Kleberg County, Texas, [appellant] did then and there with intent to obtain a benefit, intentionally or knowingly misuse government property, services, or personnel, to wit: Kleberg County, Texas, vehicles and employees, which had come into defendant's custody or possession by virtue of the defendant's office as a public servant, namely, a County Commissioner of Kleberg County, Texas, by using Kleberg County, Texas, vehicles and employees to assist in hauling debris away from defendant's personal property and the value of said property, services, or personnel was $20.00 or more but less than $500.00; against the peace and dignity of the State.²

Appellant pleaded not guilty to the charged offense, and a jury trial commenced on April 9, 2010.

In its case-in-chief, the State offered evidence to prove that on March 2, 2009, the date of the alleged offense, appellant was the elected County Commissioner for Precinct Four of Kleberg County, Texas. Appellant was also identified as the owner of certain real property located in Kleberg County, Texas. A number of witnesses testified that a barbershop had been located on the property. According to their testimony, the barbershop was demolished on March 2, 2009, the date of the alleged offense. The demolition work was performed by Eloy Saldana, who was not an employee of Kleberg County, Texas and who was not under the supervision of appellant in his capacity as the elected County Commissioner for Precinct Four of Kleberg County, Texas.

Subsequently, appellant directed two Kleberg County employees, Gus De Leon and Antonio Garcia, to take delivery of concrete "debris" from the premises and to deliver the concrete "debris" to the Precinct Four yard using trucks owned by Kleberg County.³ The employees performed the work on county time. The State also introduced into evidence the county timesheets for De Leon and Garcia for the relevant two-week pay period from February 26, 2009 through March 6, 2009, which included March 2, 2009, the date of the alleged offense. The timesheets were signed by De Leon and Garcia, and they were also signed by appellant, as their supervisor. The timesheets included the following statement, which the State offered as evidence of appellant's guilt:

UNDER PENALTY OF PERJURY, I CERTIFY THAT THE ACTUAL PHYSICAL HOURS WORKED (APHW), AS REPORTED ABOVE WERE

PERFORMED BY ME FOR THE SOLE BENEFIT OF KLEBERG COUNTY AND NOT FOR THE BENEFIT OF ANY PERSON, PRIVATE BUSINESS, CORPORATION, OR OTHER.

Other evidence offered by the State included the testimony of Sam Fugate, the Mayor of Kingsville. According to Fugate, on the morning of March 2, 2009, he drove by appellant's property and observed the following:

Well, they had demolished or demoed his barbershop which sits on the front of the lot, and there was a Precinct 4 truck that had backed in and they were loading it.

. . .

Well, it really surprised me to see that truck there so I stopped and watched, and they were - - there was a guy there with a backhoe and a front end loader. They had already mashed the house - - if you've ever seen one of these old houses or old buildings demoed what they do is they just tear them apart and then they scoop up the debris, and they were in the process of scooping up debris.

. . .

From what I saw they had already mashed the building and they were picking up the building and putting it in the truck.

Subsequently, the State elicited the following testimony from Fugate:

[Q.]: And why did you think it was significant that there was this Precinct 4 county truck parked on the private residence of the defendant's?

[A.]: Well, I know [appellant] is a county commissioner and I know he's in charge of that equipment, and it just surprised me that he had it in his front yard and he was loading that barbershop, using it for personal purpose.

On cross-examination, Fugate testified as follows:

[Q.]: All right. So all there was - - all you could see was a truck, the bulldozer, and I guess [appellant's] house in the back?

[A.]: You could see the demoed house or the house that had been mashed, the truck in the front, and the backhoe in the back in front of his house.

[Q.]: And, so, all that was left to do is to pick up the debris and put it in trucks and haul it off; is that correct?

[A.]: That's correct.

The State also called Kleberg County Judge Pete de la Garza as a witness. He testified that he passed by appellant's house on the day in question and described what he saw as follows:

[Q.]: Okay. And did you notice if anything was going on at that time?

[A.]: Well, I saw that he was demolishing a building and I saw a backhoe that was there. And I recognized the backhoe because I know who it belongs to, it belongs to Mr. Eloy Saldana, and Mr. Saldana has done work for me before so I paid no reasonable attention to it, I just went on and went to work.

[Q.]: And, so when you - - was Mr. Saldana working when you passed by?

[A.]: No. There was nobody there that I saw.

[Q.]: Just a backhoe? Just the backhoe was sitting on the - -

[A.]: Yes, just a backhoe.

[Q.]: And that backhoe was sitting on the private residence of the defendant?

[A.]: It was, yes, very close to the sidewalk, yes.

On cross-examination, the following exchange took place:

[Q.]: And what did you witness? What crime did you witness?

[A.]: The only thing I witnessed . . . was the backhoe there that belonged to Mr. Saldana and I took pictures of that backhoe and of that debris.

[Q.]: And that - -

[A.]: That is what I witnessed.

[Q.]: And that in and of itself is not a crime.

[A.]: No.

Another witness called by the State was Nelda Alvarez, County Commissioner for Precinct Two of Kleberg County, Texas, who gave the following testimony:

[Q.]: Now, you're aware that we're here on the allegation of county property being used, concrete being dumped, and I want to take you back to around March 2, 2009, probably after that date. Did you have a conversation with [appellant] concerning that ditch?

[A.]: Yes. We've always - - we had conversations several times on the ditch.

[Q.]: And what did that conversation consist of when you talked about that ditch?

[A.]: Okay. For me to remember exactly what the conversation, we had several conversations because we have erosion problems out there and he's had - - in the past had to take dirt out there all the time and he would tell me, "I went over there and I took care of it," you know, and "the guys went out there." And usually when I call him on erosion problems, because we had another one past the bridge, there was another one where they had to replace the culvert and all that, and I remember that one very well because it was in the summer and I had to go and tell the people that they had to leave their homes because they would - - the men were going to be working at 8:00 o'clock and they would not be able to get in or out of their homes. So we've had several conversations on the ditch.

. . .

[Q.]: And all of those conversations were prior to March 2, 2009, or after?

[A.]: Sir, I've had conversations all the time. I didn't - - I didn't document the dates.

On cross-examination, Alvarez testified as follows:

[Q.]: And, Ms. Alvarez, it's not your testimony that [appellant] did not talk to you about concrete before March 2, 2009, it's just that you don't remember.

[A.]: Right.

The next witness called by the State was Eloy Saldana, who testified in relevant part as follows:

[Q.]: There's two different trucks, correct?

[A.]: Right.

[Q.]: Did you load both trucks?

[A.]: I remember I loaded the first truck. I don't know about the second one. The first one I put about three or four pieces of concrete that's on - -

[Q.]: And we'll get there, hold on. Now, you loaded two different trucks, is that correct, two different Precinct 4 trucks?

[A.]: Well, I don't remember the second truck. I remember the first one. I don't know if I loaded that second truck.

[Q.]: Okay. So which one of these do you remember loading?

[A.]: The small dump.

[Q.]: This one right here?

[A.]: Yeah, this one.

[Q.]: And what does that say on the cab there, State's exhibit 5?

[A.]: Kleberg County Precinct 4.

. . .

[Q.]: Okay. Are . . . [Gus De Leon and Antonio Garcia] both Precinct 4 employees?

[A.]: Yes.

[Q.]: And you know - - so you don't know if they switched out one dump truck or drove different trucks, is that what you're saying, or do you know?

[A.]: I just remember [Garcia's] truck. I don't remember that other one, that flat bed, that other one [De Leon].

[Q.]: Okay. But you also

...