State Of La. v. Romero

• Decision Date: 02 February 2011
• Docket Number: 09-1507
• Parties: STATE OF LOUISIANA v. JOSEPH ANTHONY ROMERO
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA

v.JOSEPH ANTHONY ROMERO

09-1507

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

February 2, 2011

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE

SIXTEENTH JUDICIAL DISTRICT COURT

PARISH OF IBERIA, NO. 07-623

HONORABLE JAMES R. McCLELLAND, DISTRICT JUDGE

OSWALD A. DECUIR

JUDGE

Court composed of Oswald A. Decuir, Marc T. Amy, and J. David Painter, Judges.

CONVICTIONS AND SENTENCES AFFIRMED.

J. Phillip Haney

District Attorney

Walter J. Senette, Jr.

Assistant District Attorney

Counsel for Appellee:

State of Louisiana

Peggy J. Sullivan

Louisiana Appellate Project

Counsel for Defendant/Appellant:

Joseph Anthony Romero

Joseph Anthony Romero

In Proper Person

Louisiana State Penitentiary

DECUIR, Judge.

Defendant, Joseph Anthony Romero, was convicted on three counts of unauthorized use of a motor vehicle, in violation of La.R.S. 14:68.4, and two counts of aggravated flight from an officer, in violation of La.R.S. 14:108.1. The court sentenced Defendant to ten years at hard labor for each count of unauthorized use of a motor vehicle and two years at hard labor for each count of aggravated flight from an officer. The sentences were ordered to run consecutively.

Subsequently, the State filed an habitual offender bill, listing eleven prior offenses committed by Defendant. After a hearing, the court found Defendant to be an habitual offender, set aside his sentence for count one, and replaced it with sixty years at hard labor, which would continue to run consecutively. Defendant lodged this appeal.

STATEMENT OF FACTS

On December 6, 2006, Ralph Royer left his 1987 Dodge pickup truck idling outside the convenience store adjacent to the Holiday Inn in New Iberia. As he exited the store, Royer saw his truck leaving the parking lot. A security guard was standing outside at the time. Royer asserted he had not given anyone permission to drive his vehicle. The truck was recovered approximately a week to ten days later, but it needed extensive repairs to the electrical system. Both Royer and the security guard, Baronne Charles, identified Defendant as the perpetrator.

In New Iberia on December 27, 2006, Tamayher Fuselier started her car, which was parked in her carport, then went back inside. When she stepped back outside, she saw a man backing her car out of her driveway. She told him to bring her car back, but he kept going. Fuselier and her husband reported the car stolen and identified Defendant as being present in the neighborhood along with his girlfriend. The carwas recovered the next morning after an extended high speed police chase. Defendant was not apprehended in the vehicle but, Officer Jeff Vincent of the Erath Police Department identified Defendant as the driver.

On January 2, 2007, Cornell Eugene, Sr. stopped for gas at Landry's Truck Stop. When he went inside, one of the workers told him that someone had just left in his vehicle, a 1994 Honda Accord. Mr. Eugene's brother-in-law, Warren Drexler, was with him. Drexler had stepped outside of the car to dispose of some trash and left the automobile running. The car was reported stolen and Ivan McIntyre, a law enforcement detective who was off duty and in the Wal-Mart parking lot just before midnight on January 4, 2007, observed Defendant enter the car and exit the parking lot. Deputy Erin Irby, with the Iberia Parish Sheriff's Office was entering the parking lot at the time and gave chase. After an extended high speed chase, Defendant abandoned the vehicle and eluded capture.

ERROR PATENT

After reviewing the record, we note one error patent. The record before this court does not reflect that Defendant, before being adjudicated a habitual offender, was advised of his right to remain silent, his right to a hearing, and his right to have the State prove its case against him.

In State v. Washington, 96-656 (La.App. 3 Cir. 1/15/97), 687 So.2d 575, the court was faced with a similar situation and applied a harmless error analysis. The court held, in pertinent part:

The defendant neither acknowledged his prior offenses nor admitted the truth of the allegations contained in the habitual offender bill of information whereas the state presented the court with competent evidence as to the defendant's identity and prior convictions. The state introduced a pen packet of the sentences that defendant had served for his two prior convictions. Deputy Shirley Green, an expert infingerprint analysis, took the defendant's fingerprints in court, compared them with the fingerprints included within the pen packet, and concluded that they matched. Additionally, the state asked the court to take judicial notice of the defendant's testimony at his merit trial. The trial judge had also presided over defendant's merit trial where the defendant admitted that he had been previously convicted of two burglaries in Mississippi. In a multiple offender proceeding, the trial judge has the right to take judicial notice of any prior proceeding of the same case over which he presided. State v. Martin, 400 So.2d 1063 (La.1981).

We conclude that the state presented sufficient competent evidence to adjudicate the defendant a third offense habitual offender such that if the defendant were not advised of his rights, the omission was merely harmless error.

Id. at 583.

In this case during the habitual offender hearing, Defendant neither acknowledged his prior offenses nor admitted the truth of the allegations contained in the habitual offender bill of information. The State relied on Defendant's previous trial testimony to prove identity; the State introduced a copy of the trial transcript in the record and requested the trial judge, who had presided over the trial, to take judicial notice of Defendant's testimony. Additionally, the State relied on the pen packs, bills of information, transcripts, and minute entries to prove the prior convictions. Accordingly, we find Defendant received a fundamentally fair hearing and the error is harmless.

ASSIGNMENT OF ERROR NO. 1

Defendant argues, "[t]he evidence adduced at trial was insufficient to support three convictions of unauthorized use of a movable and two convictions of aggravated flight from a police officer." Defendant asserts that the State failed to prove he committed unauthorized use of a motor vehicle because the prosecution failed to establish he was the person who stole the vehicle.

STANDARD OF REVIEW:

The Louisiana Supreme Court has discussed the standard of review for evaluating the sufficiency of the evidence on appeal:

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, "assuming every fact to be proved that the evidence tends to prove." La. R.S. 15:438. The statutory requirement of La. R.S. 15:438 "works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury."

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537 (2007) (citations omitted).

UNAUTHORIZED USE OF A MOTOR VEHICLE:

"Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently." La.R.S. 14:68.4.

Royer Incident:

The evidence presented at trial showed that on December 6, 2006, Mr. Royer left his truck running while he made a purchase inside a store. Mr. Royer walked past Defendant on his way into the store. While Mr. Royer was inside the building, his truck was driven away by another without Mr. Royer's permission. An eyewitness identified Defendant as the person driving away in the Royer vehicle. Accordingly, there is sufficient evidence to support Defendant's conviction for unauthorized use of a motor vehicle based upon the Royer incident.

Fuselier Incident:

The evidence presented at trial showed that on December 27, 2006, Mrs. Fuselier turned on her car to warm the engine; she left it running and went back inside her house. While she was inside, her car was driven away without her permission. The vehicle was later recovered after a high-speed chase which ended a short distance from the homes of both Defendant's sister and his girlfriend. The driver fled the vehicle and eluded capture by law enforcement. A law enforcement officer who participated in the pursuit identified Defendant as the driver of the vehicle. Mrs. Fuselier maintained that Defendant's girlfriend had been standing outside when the vehicle was taken.

Hence, the direct evidence presented at trial was sufficient to show that someone took the Fuseliers' vehicle without their consent. The circumstantial facts, the presence of Defendant's girlfriend at the time of the taking, and Defendant later being seen driving the vehicle, provide the reasonable inference that Defendant was the person who took the vehicle. Defendant did not have permission to use the Fuselier automobile, and his evasive behavior when he was noticed by law enforcement the next day shows that he knew he did not have the owners' consent to use the vehicle. Therefore, there was sufficient evidence presented at trial to support Defendant's conviction for unauthorized use of a motor vehicle based upon the Fuselier incident.

Eugene Incident:

The evidence presented at trial showed that on January 2, 2007, Mr. Eugene left his keys in...