Reyes v. State

• Decision Date: 31 January 2002
• Docket Number: No. 13-00-706-CR.,13-00-706-CR.
• Citation: 69 S.W.3d 725
• Parties: Ramon Jesus REYES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

69 S.W.3d 725

Ramon Jesus REYES, Appellant, v. The STATE of Texas, Appellee.

No. 13-00-706-CR.

Court of Appeals of Texas, Corpus Christi.

January 31, 2002.

Rehearing Overruled March 14, 2002.

Donald B. Dailey, Jr., Portland, for Appellant.

Patrick L. Flanigan, Dist. Atty., Marcelino Rodriguez, Asst. Dist. Atty., Sinton, for Appellee.

Before Justices HINOJOSA, CASTILLO, and BAIRD.¹

OPINION

BAIRD, Justice.

Appellant was charged by indictment with the offense of burglary of a habitation with the intent to commit and actually committing sexual assault. Tex. Pen.Code Ann. § 30.02(a)(1), (3) (Vernon Supp.2002). The indictment alleged a prior felony conviction for the purposes of enhancing the range of punishment. A jury convicted appellant of the charged offense. Upon appellant's plea of true to the enhancement allegation, the trial court found that allegation true, and assessed punishment at twenty-five years confinement in the Texas Department of Criminal Justice-Institutional Division. We reverse.

I. Factual Summary.

Appellant's sole point of error contends the trial judge erred in admitting evidence of an extraneous offense. We will begin with a summary of the testimony developed in the trial court.

A. The State's Case In Chief.

i. Testimony Related to the Charged Offense.

The State called the following witnesses in its case in chief. We will set forth their testimony in chronological order, rather than the order they testified at trial.

Mario Dios Dado lived in the same home as the complainant, her husband and their young son; Dios Dado worked with the complainant's husband.² On March 21, 1999, the two men left work at midnight, and returned home where they loaded their fishing gear from the garage and left. Dios Dado remembered the garage door was not locked when the two departed from the complainant's residence.

By March 21, the complainant had lived in her home with her husband, son and Dios Dado for four months, and was familiar with her neighbors. Appellant lived across the street with his mother who the complainant had visited on several occasions. She had seen appellant both inside and outside his home. In the early morning hours of March 21, the complainant and her son were asleep. Although her bedroom light was off, a bright security light shone into the bedroom from outside. This lighting permitted her to see in the bedroom even when the interior light was off. While laying in her bed, the complainant felt a finger inside her vagina. She awoke, and saw an intruder whom she identified as appellant. She began hitting him on the back and said: "You mother fucker, you touched me! It was you!" She chased him out of the bedroom and through the kitchen where the light was on and she again recognized appellant as the intruder. The chase continued from the kitchen, through the garage, to the edge of the street where the complainant saw the intruder proceed to the back of appellant's home. The complainant testified that while inside her home, the intruder knew where he was going. She stated he was wearing only boxer shorts, and was not wearing glasses. The complainant testified she had never seen appellant wearing glasses.

The complainant further testified the police asked her about a second suspect, but she told the police that suspect, who was tattooed, was not the intruder. When pressed, the complainant stated she was sticking with her previous statement that the intruder did not have a tattoo, and did not wear glasses. However, on re-direct examination, she testified she was not sure whether the intruder had a tattoo. She reiterated that she had seen the intruder's face. She viewed State's exhibit one, a photograph of appellant wearing only boxer shorts and was asked if she saw a tattoo. She replied: "I don't think so."

At approximately 2:00 a.m. on March 21, Robin Duggan, a dispatcher with the Aransas Pass Police Department, received a telephone call from the complainant, who was hysterical. After being calmed by Duggan, the complainant stated she was asleep in her bed and awakened when she felt someone touching her. The complainant named the intruder as Jesse, a person who lived across the street. Duggan dispatched police officers to the complainant's home.

The first officer to arrive at the complainant's home was Roberto Gonzales who met the complainant standing in her garage holding a small child. The complainant was crying hysterically. She stated she was asleep in her bed with her child when someone touched her in a "sexual manner." She did not elaborate. When the complainant fully awoke and realized the person who had touched her was not her husband, she chased the intruder from the bedroom, out of the house and through the garage. She identified the intruder as Jesse Reyes, a person who lived across the street, and stated he was wearing only a pair boxer shorts. Patrol Officers Robert Cunningham and Dennis Anders arrived at the scene shortly after Gonzales. Both Cunningham and Anders overheard the complainant identify the intruder. Cunningham remembered the complainant identifying the person not by name, but rather as "the gentleman that lived across the street." However, Anders remembered the complainant identifying the intruder by the name of Jesse Reyes.

Darrell Jones, a detective with the Aransas Pass Police Department, received the case from Gonzales. After arriving at the complainant's home, Jones dusted for fingerprints, photographed the premises and seized the sheets from the complainant's bed. He interviewed the complainant at the police station where she stated she was awakened by her vagina being rubbed by the person who lived across the street. Jones compiled a photo spread from which the complainant identified appellant as the intruder.³ Jones took this information to a magistrate and obtained a warrant for appellant's arrest.

At approximately 4:00 a.m., Jones, Gonzales and Anders traveled to appellant's home, which was across the street from the complainant's, and executed the warrant for appellant's arrest. Appellant was found in a bedroom, lying in a bed with a female. Jones and Anders testified they noticed redness on appellant's back. Appellant introduced into evidence two booking photographs which did not show the redness.

The evidence recovered by Jones at both the complainant's and appellant's homes was tested but rendered negative results to match appellant.

ii. Testimony of the Extraneous Offense.

At the conclusion of the complainant's testimony, the State sought to offer evidence of an extraneous offense. The trial court retired the jury, and took the matter under consideration. The State wished to offer the evidence on the issue of identity, stating the extraneous offense was "very similar" to the charged offense. Appellant objected under Rules of Evidence 403 and 404(b). Appellant conceded his only defense to the charged offense was identity.

a. Testimony Outside Jury's Presence.

The trial court heard the following testimony outside the jury's presence. Naomi Mircovich was asleep in her bed with her husband, Kirk, and their four-year-old son on August 10, 1998.⁴ There were others in the house as her other son had several friends over; they were sleeping in the living room in front of the television. She awoke in the early morning hours when she felt someone fondling her breasts and vaginal area. Thinking these were amorous advances by her husband, Naomi asked: "What are you doing?" The intruder replied: "Shhhhh, don't wake your husband." Naomi turned and saw her husband and son; then turned and saw a man huddled in a fetal position with his head down. She could not see his face. She asked: "Who are you?" and the man replied: "My name is Jeremy." The intruder used a chair to enter the residence through a window. This incident occurred less than one block from the location of the charged offense.

Kirk Mircovich testified he awoke in the early morning hours of August 10 when his wife screamed his name, and said someone was in the house. Kirk saw the intruder and began pursuit. He was unable to restrain the intruder. However, he was able to see the intruder because the living room light was illuminated. Kirk identified appellant as the intruder. Kirk testified appellant was not wearing glasses, and was fully clothed at the time of this incident.

At the conclusion of the testimony, the trial court overruled appellant's objections lodged under Rules 403 and 404(b). In so ruling, the trial court made the following comments:

I don't find that from August the 10th, 1998 to March 21st of 1999 is an outrageously long period of time. I find that each of these events took place in less than one block from the residence of the Defendant, or within one block of each other. Each event took place in the dark of night somewhere between two and three o'clock. If you get rid of Daylight Savings Time, they probably happened within just a few minutes of each other.

In each of the circumstances the complaining witness was a female in her bedroom not alone in her bed, and indeed had a child in the bed with them. Whether the husband was home or made it home or not, I don't find particularly germane to the issue. I find that in each situation the home was actually lit when the person entered the home; that, in each circumstance it was unforced entry into the home; and that in each circumstance when the perpetrator was confronted he did not resist, but in fact ran off and exited the residence in the—in what appears to be the way that he entered. And in neither circumstance was the perpetrator wearing glasses.

I don't know if that has a lot do to with the case, but it certainly seems germane based on the questions that have been asked of this witness.

On those findings, even though there are some differences, one complaining witness is a Hispanic and one is an Anglo, one had her husband in bed, and one didn't, I find that these crimes are sufficiently similar to me that...