Luevano v. State, 08-10-00154-CR
| Decision Date | 23 May 2012 |
| Docket Number | No. 08-10-00154-CR,08-10-00154-CR |
| Parties | JAIME LUEVANO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 409th District Court of El Paso County, Texas (TC#20070D04788)
Jaime Luevano appeals his conviction for burglary of a habitation, a first degree felony.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2007, nine-year-old A.C. lived in the home of her father along with her grandmother and uncle. A.C. and her family spent the night of September 2, 2007, at a church bazaar where A.C. bought a glow-in-the-dark necklace. At around midnight, the family returned home and went to bed. In the early morning of September 3, 2007, A.C. awoke because she felt something licking her buttocks. At first she thought it was her dog, but when she opened her eyes she saw a man. She was able to identify Appellant as the man licking her because she saw his face in the light from the glow-in-the-dark necklace hanging over her bed. At that point, A.C. screamed, the man ran, and A.C. went to her grandmother's room. A.C. told her grandmother thatsomeone had broken into the house and that a man with a ponytail had licked her buttocks. A.C.'s grandmother got out of bed to look around and found that the front door was unlocked. She checked outside of the home, but did not see anyone. According to A.C.'s grandmother, A.C. appeared frightened and was crying. Because A.C. had constant nightmares, the family decided not to call the police because they believed A.C. had another bad dream. The next morning A.C. repeated the same story to her family and her father called the police. Crime Scene Unit Officer Juan Montelongo was dispatched to A.C.'s home on a burglary of a habitation. Montelongo testified that when he arrived at the home, police were already on the scene, and based on what he was told, he believed there was potential evidence at the scene. Montelongo took pictures of the home and hoped to collect latent fingerprint and DNA evidence. Because A.C. was traumatized and because she was already familiar with Officer Jessica Martinez, Montelongo requested that Martinez collect DNA swabs from A.C. Montelongo instructed Martinez on how to collect DNA evidence from A.C., but he was not in the room when Martinez performed the collection. Martinez took two swabs from A.C.'s buttocks region and two swabs from another area to be used as controls to rule out A.C.'s DNA. After Martinez collected the DNA evidence, she immediately handed it over to Montelongo who then completed the required paperwork and turned it into the property office. Detective Mary Beth Pena of the Crimes Against Children Unit was assigned to the case. On September 3, 2007, Pena conducted a forensic interview with A.C. She and her partner, Detective Bowling also took statements from A.C.'s father, grandmother, and uncle. The next day, Pena showed A.C. a photo lineup, and A.C. identified Appellant as the suspect.2 After concluding that an offense did occur, an arrest warrant was issued for Appellant for the offense ofburglary of a habitation with intent to commit an aggravated sexual assault. A search warrant was also issued to obtain buccal swabs from Appellant's mouth.
On September 13, 2007, Montelongo submitted the DNA evidence collected from both A.C. and Appellant for DNA testing to the Texas Department of Public Safety Crime Laboratory. The DPS Crime Lab requested buccal swabs from A.C., which would be used as a control during the DNA analysis. Christine Ceniceros, a forensic scientist with the DPS Crime Lab, compared Appellant's known DNA profile with the DNA extracted from the buttocks swabs that had been collected from A.C. by Officer Martinez. She determined that the DNA extraction from the buttocks sample contained a mixture of DNA that was consistent with DNA from both A.C. and Appellant. Ceniceros' written report indicated that with respect to Appellant's DNA, the probability of selecting an unrelated person at random who could be a contributor to this DNA profile is approximately 1 in 13.96 billion for Caucasians, 1 in 21.2 billion for Blacks, and 1 in 5.362 billion for Hispanics. Ceniceros also determined that Appellant could not be excluded as a contributor to the DNA profile obtained from the buttocks swabs.
At trial, A.C.'s father testified that Appellant did not have consent to enter his home. A.C. made an in-court identification of Appellant as the man who entered her bedroom and licked her buttocks. Appellant testified in his own defense. He stated that he had been asleep in his home the morning of September 3, and was startled by the police banging on his door that morning. He further testified that he never knew A.C. prior to this incident. Appellant claimed that A.C. was lying, and that she was brainwashed by the State. The jury rejected Appellant's defense, found him guilty of burglary of a habitation with intent to commit a felony as charged in the indictment,found the enhancement paragraph true, and assessed his punishment at life imprisonment. This appeal followed.
DISCUSSION
Appellant raises ten issues on appeal. In Issue One, Appellant contends that the trial court erred in submitting a jury charge that allowed a non-unanimous verdict.
Unanimous Verdict
Jury verdicts in criminal cases must be unanimous. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005); TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West 2006). The unanimity requirement is satisfied when each juror agrees the defendant committed a single offense. Ngo, 175 S.W.3d at 745; see Bundy v State, 280 S.W.3d 425, 431 (Tex. App. - Fort Worth 2009, pet. ref'd). However, the jury is not required to agree that the offense was committed in one specific way or even with one specific act. Ngo, 175 S.W.3d at 745-46; Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008) (citing Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)).
To determine the offense about which a jury must reach a unanimous decision, we evaluate whether the statute defining the offense created multiple separate offenses or only a single offense with multiple methods or alternate means of commission. Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); see also Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Our first step is to apply basic rules of grammar to the applicable statutory text to distinguish between the essential and nonessential elements. Pizzo, 235 S.W.3d at 714. The essential elements of an offense are: (1)the subject, or defendant; (2) the main verb; (3) the direct object of the main verb, if required; (4) the specific occasion; and (5) the requisite mental state. Id. at 714-15. The nonessential elements for which unanimity is not required are typically adverbial phrases describing how the offense can be committed. Id. at 715. When the jury is allowed to choose between alternate means of commission there is no violation of the unanimity requirement. Id.
In the present case, Appellant was charged with burglary of a habitation with intent to commit a felony pursuant to Texas Penal Code section 30.02(a)(1). See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). The gravamen of a burglary offense is the nonconsensual entry of the habitation with the requisite mental state. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). The jury charge in relevant part, read as follows:
Appellant argues that this charge improperly allowed the jury to convict him of burglary of a habitation with the intent to commit a felony without requiring the jury to unanimously agree on aggravated sexual assault of a child or indecency with a child as the underlying offense. We disagree. Neither the acts of aggravated sexual assault of a child or indecency with a child constitute the essential elements or the gravamen of a burglary of a habitation offense. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). Rather the two acts are alternate means of committing the offense. See Martinez, 129 S.W.3d at 103; Kitchens, 823 S.W.2d at 258. Accordingly, we hold there was no error because the jury was only required to unanimously agree that Appellant committed burglary of a habitation with intent to commit a felony, and did not have to unanimously agree on the alternate means of commission. See Martinez, 129 S.W.3d at 103; Kitchens, 823 S.W.2d at 258; see also Brown v. State, No. 05-07-00939-CR, 2010 WL 425063, at *6 (Tex. App. - Dallas Feb. 8, 2010, no pet.). Issue One is overruled.
Double Jeopardy
In Issue Two, Appellant argues that the State caused a mistrial by knowingly failing to exercise its peremptory challenge to exclude a juror who was recognized by A.C., and therefore a retrial of the case was barred by the Double-Jeopardy Clause.3 U.S. CONST. AMEND. V, XIV, § 1; TEX. CONST. art. I, § 10.
The Fifth Amendment's Double-Jeopardy Clause protects a criminal defendant from repeated prosecutions for the...
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...op., not designated for publication) (concluding defendant must file written motion), and Luevano v. State, No. 08-10-00154-CR, 2012 WL 1883115, at *10 (Tex. App.—El Paso May 23, 2012, pet. ref'd) (mem. op., not designated for publication) (same), with Villarreal v. State, 348 S.W.3d 365, 3......