Perez v. State, No. 03-08-00773-CR (Tex. App. 8/21/2009), 03-08-00773-CR.
| Decision Date | 21 August 2009 |
| Docket Number | No. 03-08-00773-CR.,03-08-00773-CR. |
| Parties | ANTHONY JAMES PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Hays County, 22nd Judicial District, No. CR-08-374, Honorable Charles R. Ramsay, Judge Presiding.
Affirmed.
Before Justices PATTERSON, PEMBERTON and WALDROP.
A jury convicted appellant Anthony James Perez of the offense of burglary of a habitation. See Tex. Penal Code Ann. § 30.02 (West 2003). The district court assessed punishment, enhanced by prior felony convictions, at 60 years' imprisonment. In two issues on appeal, Perez asserts that the State repeatedly violated a motion in limine related to extraneous offenses and claims that his trial counsel rendered ineffective assistance.1
We will affirm the judgment of conviction.
The jury heard evidence that two houses in Kyle were burglarized on May 10, 2006. The first house was owned by Jimmy Spivey and his then-wife, Geraldine Gavrilov. Spivey testified that, when he returned home from running errands that day, he noticed that the door entering into his house from the garage was open, and his dog, who was normally kept on a leash in the garage during the day, was inside the house. Spivey further explained that he kept his garage door leading to the driveway partially open during the day so that the dog could go in and out. Suspecting a break-in, Spivey called the police. The officer who responded to Spivey's call was Officer Jason Dibble of the Kyle Police Department. When Officer Dibble arrived, he first observed that the door leading into the residence from the garage "had been kicked open, causing damage to the door and the doorjamb itself." After Dibble "cleared the house" to make sure no one was inside the residence, he and Spivey walked through the house to determine if any property had been stolen. Spivey testified that he did not observe anything missing. However, he noticed that the lid of his laptop computer, which was located in his bedroom, had been closed. When Gavrilov returned home later that afternoon, she noticed that a necklace and a cubic zirconia ring were missing from the upstairs bathroom. Gavrilov testified that she also observed pieces of wood missing from the door entering into the house from the garage, broken wood on the carpet inside, and something that looked "like a footprint" "right below the doorknob" where the door had been broken. The police did not obtain fingerprints from any objects in the house. Dibble testified that he did not dust the laptop for fingerprints because he did not want to risk damaging the computer, and he did not dust the garage entry door for fingerprints because it had been kicked open by foot rather than by hand.
The second house that was allegedly burglarized was owned by John Rogers. Rogers testified that his house was located on the same cul-de-sac as the Spiveys' house, although the houses were not adjacent to each other. According to Rogers, their houses were separated by another house that belonged to a woman named "Carol."2 Rogers drew a diagram for the jury identifying the relative locations of the houses on the cul-de-sac.
Rogers testified that he was at home taking care of his infant son when someone rang his doorbell at around 1:00 p.m. on May 10, 2006. Rogers approached the front door, looked through the peephole, and saw a man standing on the porch. Rogers did not recognize the man and decided not to answer the door. Instead, he went to the family room and turned on the television. However, after a couple of minutes, Rogers thought that "it's kind of strange that somebody would be walking around the neighborhood at about that time of day," so he decided to look out his front window and see if the person was still around. Rogers recalled, "I saw the individual walking from my house through the street toward Mr. Spivey's house." Rogers thought that the individual was "just selling something," so he returned to the family room.
Approximately 20 minutes later, as Rogers was holding his baby and sitting in the family room watching television, he heard a chirping sound coming from his home alarm system. According to Rogers, that sound meant that a door or window had been opened. Rogers stood up, turned around, and saw the individual he had seen earlier standing in his kitchen. Rogers assumed that the man had entered through the sliding glass door in the kitchen, which was unlocked at the time.
Rogers testified that the man put up his hands and said, "Whoa, whoa." Rogers asked him, "Is there something I can help you with?" Rogers testified that he was "calm at the time," but the man "seemed a bit nervous, agitated that I was there." According to Rogers, the man explained that his friend had told him that he was "going to leave some golf clubs on the patio" and that "he could come pick them up." When Rogers asked the man who his friend was, the man told him, "His name is Tom." Rogers informed him that "there is no Tom that lives here," and, after he "conversed a little bit" with the individual, the man opened the sliding door and "ran through the backyard." Rogers also testified that, as they were talking, they were "maybe seven to eight feet apart from each other." Rogers described the man as "a small person," shorter than Rogers, and "in [the] range" of five-foot-nine to five-foot-ten inches tall. Rogers also recalled that the man was wearing dark clothing, had dark hair, and had "almost like an Italian skin tone, like an olive skin tone."
After the man left, Rogers walked to the front of the house and again looked through the front window. Rogers testified that he saw the man walking from his house to Carol's house, where there was a "black vehicle" parked either on or near Carol's driveway. Rogers testified that Carol lived by herself and owned a gold vehicle. Rogers added, and "sped down the street." Rogers testified that he did not see anyone else in the vehicle. When asked to describe the vehicle, Rogers testified that he "just remember[ed] it being a black SUV" with "chrome wheels." When asked if he thought it might be "a Tahoe or something like that," Rogers answered, Rogers explained that he was able to see "the side view of the backside of the vehicle." He did not observe the vehicle's license plate number. A picture of a black Yukon SUV was admitted into evidence. When asked if the vehicle in the picture looked like the vehicle he saw in the driveway, Rogers testified, "Yes, sir." When asked why he thought it looked like the vehicle, Rogers explained, "I remember the chrome wheels and the way the wheel wells have—the black wheel well covers on them."
On July 28, 2006, Officer Phillip Kelly of the Austin Police Department performed a traffic stop on a black SUV for failing to signal a lane change. Officer Kelly described the vehicle as a "black GMC Yukon later discovered to be a 1996 model" with a Louisiana license plate. The driver of the vehicle was identified as Perez. When asked if Perez had "any warrants," Kelly testified, "Yes, he did."3 Kelly then took Perez into custody and performed an inventory search of the vehicle. One of the items Kelly discovered was what he described as a "sports memorabilia Dallas Cowboy men's ring." However, Kelly explained that it was not the kind of ring one puts on a finger, but "more like a large scale ring" that could possibly serve as a paperweight. Kelly added that, in his mind, "[j]ust the size of it and then the Dallas Cowboy and the star in the middle stood out."4
The property that was seized from Perez's vehicle was turned over to Officer Mason Feinartz of the Austin Police Department. When asked if one of the objects stood out in his mind, Feinartz testified, Feinartz also testified that it looked like a paperweight. On cross, Feinartz agreed with defense counsel's characterization of the object as "a paperweight in the shape of a ring." Feinartz also testified, Later in his testimony, he added, When asked by defense counsel if the ring had any "identifying marks on it," Feinartz testified,
The Austin Police Department placed a public announcement on television about the ring. Geraldine Gavrilov saw this announcement and recognized the ring. Gavrilov testified that the ring, which she confirmed was actually used as a paperweight, was missing from her house, but she had not realized that it was missing until she saw the announcement. According to Gavrilov, the object had been located on a glass table in the hallway near the front door. Feinartz testified that Gavrilov contacted the police department on August 9, 2006, came into Feinartz's office that day, and "positively identified that ring." Feinartz then gave the ring to her.
After that, Feinartz testified, he contacted the Kyle Police Department and advised them that the ring had been claimed. He also informed them that the object had been seized from the vehicle Perez had been operating when he was arrested. Feinartz then prepared a photo lineup that contained a photograph of Perez and provided the lineup to...
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