Trevino v. State, No. 07-04-0066-CR (TX 6/15/2005)

• Court: Texas Supreme Court
• Writing for the Court: James T. Campbell
• Decision Date: 15 June 2005
• Docket Number: No. 07-04-0066-CR,07-04-0066-CR
• Citation: Trevino v. State, No. 07-04-0066-CR (TX 6/15/2005), No. 07-04-0066-CR (Tex. Jun 15, 2005)
• Parties: ANTONIO I. TREVINO, Appellant v. THE STATE OF TEXAS, Appellee.

Page 1

Unpublished Opinion

ANTONIO I. TREVINO, Appellant v. THE STATE OF TEXAS, Appellee.

No. 07-04-0066-CR

Court of Appeals of Texas, Seventh District, Amarillo.

June 15, 2005.

Do Not Publish.

Appeal from the 137^th District Court of Lubbock County; No. 2003-402258; Honorable Cecil G. Puryear, Judge.

PANEL D: Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

Appellant Antonio I. Trevino appeals his conviction of the felony offense of burglary of a habitation and jury assessed punishment, enhanced by a prior conviction, of 99 years confinement. We will affirm.

Appellant was charged by an indictment alleging he committed burglary by entering the habitation of Jesus Gallegos with intent to commit theft. The indictment contained an enhancement paragraph alleging a prior felony conviction for tampering with government records. Appellant was found guilty after a three-day trial at which he was represented by appointed counsel. He perfected appeal and the trial court appointed counsel to represent him on appeal. That counsel has filed a motion to withdraw, supported by a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which he represents that he has searched the record and in the opinion of counsel there is no reversible error or legitimate grounds for appeal. Appellant has also filed a brief asserting issues he contends require reversal.

The evidence at trial showed on the morning of February 10, 2003, the Lubbock Police Department received reports of burglaries of several homes located close to each other. One 911 call was made by a witness living across from the house at 2817 65^th Street. The caller reported that she and her mother heard a loud "knock," and that two Hispanic men had kicked in the door of the house across the street and backed a car up to the house. The caller further reported watching the men remove property from the house and described the car, including the fact the men used a rope to secure the trunk lid over a television.

The car left the residence before police arrived but officers Juventino Calvillo and Billy Koontz, driving separate marked patrol cars, soon located it. When Calvillo attempted to stop the car, the driver turned a corner and attempted to flee. The officers pursued the car for approximately a mile and a half on residential streets where the driver exceeded the speed limit and disregarded stop signs. At one point the passenger jumped from the vehicle as it was coming to a stop and attempted to run from the officers. Calvillo testified the driver put the car in reverse and backed into his patrol car before continuing several more blocks. When the driver did stop the car, he got out and unsuccessfully attempted to run from police. Calvillo identified appellant as the driver of that car. The passenger was also captured and identified as Frank Lara.

About the same time, other officers were responding to burglary reports at the homes at 2719 66^th Street and 2705 66^th Street, and at the home of Jesus Gallegos at 2801 66^th Street. In each case a door of the residence had been kicked open. After appellant and Lara were booked into jail, an officer compared their shoes to the imprint left when the door at Gallegos' house was kicked open. The officer found the right shoe worn by Lara matched the imprint on the door. Appellant was charged only with the burglary of Gallegos' house.

At trial appellant did not testify but presented the testimony of Lara, who had pled guilty to one of the burglaries in exchange for dismissal of two other charges. Lara testified he is appellant's cousin and had asked appellant to help Lara retrieve some of his property from a former residence. Before they reached their destination the car overheated and appellant pulled into a driveway to cool it down. While appellant was working on the car, Lara walked to 66^th Street and "burglarized some houses." He admitted kicking in doors and placing a number of items from the houses in two duffel bags. When he returned to the car with the bags he told appellant he still needed to pick up his television. Appellant drove to the 2817 65^th Street house and backed up to the door. Lara said he brought the television to the front door and attempted to conceal the damage to the door from appellant.

According to Lara, when the officers attempted to stop their car, appellant asked Lara why they were being stopped. Lara speculated that appellant did not want to stop for the officers because of "a warrant."¹ Lara's testimony concerning the police pursuit was generally consistent with that of Officer Calvillo. He claimed, though, that Calvillo "slammed into the back of us," causing Lara to be thrown over the car door.

In addition to the television in the trunk, evidence showed the car contained several consumer electronics items and other household items, including several items identified as belonging to Gallegos. Photographs taken of the back seat of the car show the items but do not show the duffel bags described by Lara.

The charge to the jury included a parties charge and an instruction that mere presence alone is insufficient to make one a party to an offense. It also instructed the members of the jury they could not consider evidence of other offenses unless they found appellant committed those offenses beyond a reasonable doubt and then only for the purposes listed in Rule of Evidence 404(b). Defense counsel's argument to the jury emphasized the lack of evidence appellant entered the house he was charged with burglarizing. He did not directly argue Lara's testimony negated appellant's knowledge of the burglary.

Appellate counsel represents that he has searched the record and in the opinion of counsel there is no reversible error or legitimate grounds for appeal. The brief thoroughly discusses the procedural history of the case and evidence presented at trial. In conformity with counsel's obligation to support the appeal to the best of his ability, Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, pet. ref'd), the brief discusses one potential complaint on appeal concerning admission of extraneous offense evidence.² Our review convinces us that appellate counsel conducted a complete review of the record. Appellant has filed a pro se brief in which he raises three issues assigning error to the judgment of the trial court. The State has not filed a brief in response.

In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). If, after reviewing the briefs submitted by appellant and his counsel, this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).

The issue discussed in counsel's brief concerns the trial court's admission of the evidence of three uncharged burglaries, evading arrest, and aggravated assault on a public servant that was contained within the testimony concerning the events leading to appellant's arrest. Appellant timely objected to admission of that evidence at trial on the basis of Rules of Evidence 404(b) and 403. Counsel correctly notes rulings on evidence are committed to the discretion of the trial court. See Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1999).

As counsel also notes, evidence showing extraneous offenses may be admitted if it is "same transaction contextual evidence" which provides information essential to an understanding of the context and circumstances of interwoven events. Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993). We find the trial court's admission of the evidence of other offenses occurring during the events giving rise to appellant's prosecution does not present a meritorious issue on appeal.

Appellant's well-prepared pro se brief raises three issues. The first two issues question the legal and factual sufficiency of the evidence supporting the finding he is criminally liable as a party. Appellant's third issue asserts the sentence of 99 years violates the prohibition against cruel and unusual punishment in the federal constitution. His brief correctly states the standards by which we must review challenges to the legal and factual sufficiency of the evidence and recitation of those standards here is unnecessary. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 128 (Tex.Crim.App. 1996).

In support of his first issue, appellant argues the evidence failed to establish a prior or contemporaneous agreement to commit an offense. He relies on Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App. 1985), for the proposition that criminal liability as a party for the conduct of another requires evidence of such an agreement. We do not agree with that characterization of the holding in Beier.

Imposition of criminal liability on a defendant for the conduct of another is authorized by chapter seven of the Penal Code. Section 7.02(a) provides in relevant part: "A person is criminally responsible for an offense committed by the conduct of another if: (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]" Tex. Pen. Code Ann. § 7.02(a) (Vernon 2003).

In the Beier opinion the court began with the general statement that where the evidence shows the defendant "was not a 'primary actor,' but at most responsible for the actions of the 'primary actor,' the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct." Id. at 3. It went on to hold physical presence during an offense and encouraging commission of the offense "either by...