Rios v. State
| Decision Date | 10 June 2021 |
| Docket Number | NUMBER 13-19-00235-CR |
| Parties | QUENTIN RIOS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 319th District Court of Nueces County, Texas.
Before Justices Benavides, Hinojosa, and Silva
By five issues, appellant Quentin Rios appeals his conviction for burglary of a building, a state jail felony. See TEX. PENAL CODE ANN. § 30.02(a)(3). Rios's conviction was enhanced to a second-degree felony based on prior convictions. See id. § 12.42. Rios argues that the trial court erred by (1) not allowing evidence regarding the lack of an insurance claim by the complainant; (2) admitting a surveillance video that lacked proper authentication; and (3) allowing the State to reopen its case and introduce jail call evidence. Rios additionally argues that (4) the evidence was insufficient to support the verdict; and (5) his motion for new trial should have been granted. We affirm.
On March 7, 2018, Robstown police were called to Act-On Mobile1 (Act-On) in reference to a burglary of its building that had occurred overnight. At trial, Carlos Cavazos Jr., the lead service technician, testified. Cavazos said when he arrived at work that morning that there were multiple tools and batteries missing from the tool room. Later, the workers realized there were tablets missing from the manager's office as well. Cavazos stated there did not appear to be any signs of forced entry on the premises. Workers noticed that phones were not properly hung up and the phone logs showed there had been numerous calls made between 12:46 a.m. to 12:58 a.m. when no one should have been at the business. Cavazos explained that the employees do not have permission to take tools home and no one stated they had removed tools from Act-On. On cross-examination, Cavazos said that the complainant, Brandon McClellan, the manager, no longer worked with Act-On. He explained that when Act-On was bought, some of the other branches of the business were closed, so they replaced the missing tools with tools from those locations. Cavazos was not aware if there was an insurance claim filed regarding the missing tools or not. He described the tools as "heavy duty" tools that used rechargeable battery packs and felt that if all the tools and battery packs had been removed in a tool bag, it would have been extremely heavy. Cavazos stated that McLellanwas the person who spoke with the police officers and he did not know if McLellan told officers about two recently terminated employees that would have still had the access codes to the business. He also said that McLellan was "typically" the last to leave and would lock the doors and gates. Cavazos did not know any of the phone numbers called from the work phone and did not know of any tools missing prior to March 7, 2018.
Pamela Banda, the manager of the Snappy Foods convenience store near Act-On, testified that her store has surveillance cameras both inside and outside the store. She stated she allowed police officers to download the video, that the video has a timestamp, and she was not working that evening. Banda stated that even though the video had a time stamp, the time shown was incorrect and off "about an hour" because of the time change.
Officer Monica Salinas of the Robstown Police Department was the first to arrive at Act-On on March 7, 2018. She stated that when she walked into the building, she did not see any signs of forced entry and she met with the manager of Act-On and created an inventory of what appeared to be missing. The inventory was an approximate list of items and she believed there were about ninety-six items listed. Officer Salinas also took some fingerprint lifts and a shoeprint impression while she was there. She said she also noticed that phone calls had been made on one of the work phones after business hours. McLellan mentioned to her that he had recently fired two employees and the lock combinations had not been changed since they had been terminated. Officer Salinas explained she did not personally follow up on the names because her reports were turned over to the investigations department to continue working on the case.
Next, Officer Michael Purnell from the Robstown Police Department testified that he obtained the Snappy Foods store surveillance video the following day. Rios objected that the proper predicate was not laid because the time was incorrect and thus the video should not be allowed into evidence. The trial court overruled his objection. Officer Purnell stated that the video time was forty-six minutes fast, which he determined based on watching video of himself entering the store and comparing it to his watch. Officer Purnell said when viewing the video, he saw a male walk towards the Snappy Foods store from "generally in the direction" of Act-On2 at approximately 1:09 a.m., and enter the store carrying a "large red tool bag." He also testified that although fingerprints were collected at Act-On, there was an "oversight" at the police department due to a personnel change and the fingerprints were not analyzed. On cross-examination, Officer Purnell explained there was no way to analyze shoe prints, but the print collected appeared to be from a boot. He agreed that Rios, as seen in the surveillance video, was wearing sneakers. Officer Purnell walked around Act-On the following day, but he did not find any tools or bags in the area. He felt it would "be hard" to carry the number of items alleged to have been taken and did not think it would be "possible" to fit all the items on the inventory list into the tool bag he saw on the Snappy Foods store video. Officer Purnell also explained that he had not looked into the phone calls made from Act-On after hours until right before the trial, but that one of the numbers appeared to come back to a possible ex-girlfriend of Rios's. He also stated that he checked pawn shops in the area after the theft but did not find any of the tools taken and was unable to make further contact with McLellan becausehe would not return any of the phone calls.
Sergeant Arturo Gonzalez Jr., with the Robstown Police Department, testified that he had known Rios for over twenty years. Sergeant Gonzalez stated that Rios is homeless and "bounces around" to different places to live. He explained that he was asked to assist in the investigation. Sergeant Gonzalez said he ran the phone numbers found on the Act-On phone the day before he testified and found that at least one of the numbers was registered to an ex-girlfriend of Rios's, but he did no additional follow up regarding the phone numbers. He also agreed on cross-examination that just because a person had a similar bag does not mean they were involved in an offense.
After the State rested its case, it asked the trial court to reopen the evidence in order to present testimony regarding Rios's jail call history. Rios objected stating because the State had just obtained this information, it was akin to "trial by ambush." The trial court allowed Lieutenant Jay Worthington of the Nueces County Sheriff's Office to testify. He stated he was the custodian of the jail call records and that he had found there were multiple calls between Rios's inmate pin number, which is a number assigned to an individual inmate, and Rios's ex-girlfriend's phone number. Lieutenant Worthington also said he had just been asked to run the comparison earlier that same morning.
At the jury charge conference, Rios objected to the State's inclusion of an instruction regarding the law of parties. Rios stated there was no evidence presented that any other parties were involved in the alleged offense. The State countered that the instruction had been included based on Rios's questions to the witnesses. The trial court overruled the objection.
The jury found Rios guilty of burglary of a building. See TEX. PENAL CODE ANN. § 30.02(a)(3). The trial court found the enhancement paragraphs true and sentenced Rios to eight years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. Rios filed a motion for new trial that was overruled by operation of law. This appeal followed.
By his fourth issue, which we address first, Rios argues that the evidence was insufficient to support his conviction for burglary of a building. See TEX. PENAL CODE ANN. § 30.02(a)(3). As sub-issues to this argument, Rios also argues that his right to confrontation was violated when the State did not call McLellan, the complainant, as a witness and the law of parties instruction should not have been given.
The State argues that Rios's issues present nothing for review because they are multifarious. We choose to address the issues in our sole discretion.
In reviewing the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
We consider both direct and circumstantial evidence as well as all reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence inestablishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018); Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013). "Each fact need not point directly and independently to the guilt of a defendant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Walker v. State, 594 S.W.3d 330, 335 (Tex. Crim. App. ...
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