Quincy Lamont Anderson v. State

Opinion issued January 22, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00944-CR

QUINCY LAMONT ANDERSON, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 268 th District Court

Fort Bend County, Texas

Trial Court Cause No. 43558-B

MEMORANDUM OPINION A jury convicted appellant, Quincy Lamont Anderson, of burglary of a

habitation and assessed punishment at 20 years in prison. See Tex. Pen. Code Ann.

§ 30.02(a)(1) (Vernon 2003). In four issues, appellant contends that: (1) the evidence

supporting his conviction was legally and factually insufficient; (2) his arrest was

illegal; (3) the court erred in denying his motion to suppress a blood sample obtained

during his arrest; and (4) the State’s use of the term “home invasion” during trial

violated his due process rights and Texas Rule of Evidence 404(b). We affirm.

Background

About 2:00 a.m. on September 20, 2005, Missouri City Police Department

Detective Greg Nelson was dispatched to the scene of a burglary of a house. A

person, later identified as Joseph Hebert, was reported dead at the scene. Police

determined that Hebert was one of several men who had broken through the front

door of the house and had been fired upon by Gamal Duncan, one of two men who

were renting the house. Duncan was a marijuana dealer. On the night of the shooting,

Detective Nelson was contacted by two women, who identified themselves as

Hebert’s sister and mother, who told Nelson that they believed that Hebert was the

shooting victim referred to in a news report they had seen. Detective Nelson found

the call strange because the news report had not provided the victim’s identity or a

description, and he believed that a participant in the burglary had told the women and

other members of Hebert’s family what had happened. Investigators soon began to

suspect that appellant, who was Hebert’s cousin, was one of the other perpetrators.

A few days later, Detective Nelson received an anonymous tip from a woman

claiming that appellant had admitted to a role in the burglary. The informant recited

details of the incident that had not been publicly released. Detective Nelson contacted

Hebert’s mother and sister, and the mother confirmed that appellant had told her

about the robbery as well. Detective Nelson then swore out an affidavit and obtained

an arrest warrant.

Houston police officers arrested appellant pursuant to the warrant. During the

arrest, appellant, who had sustained a gunshot wound during the burglary, bled on the

shirt of one of the arresting officers. The shirt was collected, the blood on it was

tested, and the blood matched a sample taken from the scene of the robbery.

Sufficiency of the Evidence

In his third issue, appellant argues that the evidence is legally and factually

insufficient to support an inference of his intent to commit theft when he entered the

home.

Standards of Review

We review the legal sufficiency of the evidence by viewing the evidence in the

light most favorable to the verdict and determining whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Cruz v. State , 238 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)

(citing King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). The trier of fact

is the sole judge of the weight and credibility of the evidence. Margraves v. State , 34

S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency

review, we may not reevaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder. Dewberry v. State , 4 S.W.3d 735,

740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in

favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

When conducting a factual sufficiency review, we view all of the evidence in

a neutral light. Brown v. State , 212 S.W.3d 851, 859 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d) (citing Ladd v. State , 3 S.W.3d 547, 557 (Tex. Crim. App. 1999)).

We will set the verdict aside only if (1) the evidence is so weak that the verdict is

clearly wrong and manifestly unjust or (2) the verdict is against the great weight and

preponderance of the evidence. Brown , 212 S.W.3d at 859 (citing Johnson v. State ,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Under the first prong of Johnson , we

cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply

because, on the quantum of evidence admitted, we would have voted to acquit had we

been on the jury. Brown , 212 S.W. 3d at 859 (citing Watson v. State , 204 S.W.3d 404,

417 (Tex. Crim. App. 2006)). Under the second prong of Johnson , we cannot declare

that a conflict in the evidence justifies a new trial simply because we disagree with

the jury’s resolution of that conflict. Id. Before finding that evidence is factually

insufficient to support a verdict under the second prong of Johnson , we must be able

to say, with some objective basis in the record, that the great weight and

preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a

factual sufficiency review, we must also discuss the evidence that, according to the

appellant, most undermines the jury’s verdict. Brown , 212 S.W.3d at 859 (citing Sims

v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The

fact-finder alone determines what weight to place on contradictory testimonial

evidence because that determination depends on the fact-finder’s evaluation of

credibility and demeanor. Cain v. State , 958 S.W.2d 404, 408-09 (Tex. Crim. App.

1997). As the determiner of the credibility of the witnesses, the fact-finder may

choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.

Legal Sufficiency

A person commits the offense of burglary of a habitation if, without the

effective consent of the owner, he enters a habitation with the intent to commit a

felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02(a)(1). The elements of the

offense of burglary, including intent, may be established by circumstantial evidence.

Nelson v. State , 599 S.W.2d 809, 810 (Tex. Crim. App. 1980); Ortega v. State , 626

S.W.2d 746, 749 (Tex. Crim. App. 1981). It is well settled that the act of breaking and

entering a building at night raises the presumption that the act was done with the

intent to commit theft. Clark v. State , 543 S.W.2d 125, 128 (Tex. Crim. App. 1976);

see also Alvarado v. State , 596 S.W.2d 904, 906 (Tex. Crim. App. 1980) (applying

rule in case involving burglary of a habitation). Here, the State presented evidence

that appellant either broke and entered into Gamal Duncan’s house or acted together

with others in doing so. See Clark , 543 S.W.2d at 127 (“An individual may be guilty

of burglary even though he did not personally enter the burglarized premises if he is

acting together with another in the commission of the offense.”). The burglary took

place at approximately 1:30 a.m. Although Gamal Duncan had not invited appellant

into his house and had never even seen appellant before the trial, police officers found

appellant’s blood at the scene. The first officer to arrive at the house testified that the

front door had been forced open. The evidence that appellant either broke and entered

into Gamal Duncan’s house or acted together with others in doing so was sufficient

for the jury to infer that appellant intended to commit the offense of theft. See

Alvarado , 596 S.W.2d at 906 .

The State also produced additional evidence from which the jury could infer

that theft was the motive for appellant’s entry into the home. Duncan admitted to

dealing marijuana for a living. Detective Nelson testified that burglars commonly

break into the homes of drug dealers to steal drugs and money. Evidence is legally

sufficient as long as it provides the requisite proof needed to satisfy the elements of

the offense charged. Bousquet v. State , 47 S.W.3d 131, 137 (Tex. App.—Houston [1st

Dist.] 2001, pet. ref’d). We hold that the evidence supports an inference of intent to

commit theft and is legally sufficient to sustain appellant’s conviction for the offense

of burglary of a habitation.

Factual Sufficiency

In support of his factual sufficiency challenge, appellant points to evidence that

Duncan denied firing shots at the intruders during his initial interview with police

officers. At trial, appellant argued that Duncan had tried to rob him during a drug

deal. When confronted about the matter on the stand, Duncan testified that he denied

having fired the shots at first because he was nervous about having drugs in his

house. Duncan further stated that he never sells drugs at his house and would never

tell a customer where he lives. Detective Nelson testified that it would be so unusual

as to be “outside the realm of [his] experience” for a drug dealer to rob one of his own

customers and attempt to cover it up by claiming that the customer broke into the

dealer’s house. Viewing the relevant evidence in a neutral light, favoring neither the

State nor appellant, and with appropriate deference to the jury’s credibility

determinations, we conclude that the evidence supporting the verdict is not too weak

to support the jury’s finding of guilt beyond a reasonable doubt and that the weight

of the evidence contrary to the verdict is not so strong that the State could not have

met its burden of proof on the issue of appellant’s intent to commit theft. See Pena

v. State , 251 S.W.3d 601, 609 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

Accordingly, we hold that the evidence on the issue of intent is factually sufficient

to support appellant's conviction for the offense of burglary of a habitation. We

overrule appellant’s third issue. Legality of Arrest

In his first issue, appellant contends that Detective Nelson’s affidavit was

insufficient to establish probable cause for the issuance of the warrant for the arrest

of appellant.

Standard of Review

An affidavit in support of an arrest warrant must provide the magistrate with

sufficient information to support an independent judgment that probable cause exists

for the issuance of the warrant. Boley v. State , 16 S.W.3d 95, 97 ( Tex.

App.—Houston [1st Dist. ] 2000, no pet.) (citing Castillo v. State , 739 S.W.2d 280,

290 (Tex. Crim. App. 1987)). The warrant’s affidavit need only contain probable

cause; it need not contain sufficient evidence that would convince a jury of the

defendant’s guilt beyond a reasonable doubt. McFarland v. State , 928 S.W.2d 482,

509-10 (Tex. Crim. App. 1996), overruled on other grounds , Mosley v. State , 983

S.W.2d 249, 263 (Tex. Crim. App. 1998). The sufficiency of the affidavit is examined

under the “totality of the circumstances” analysis articulated by the United States

Supreme Court in Illinois v. Gates . See 462 U.S. 213, 238-39 , 103 S. Ct. 2317, 2332

(1983); see also Hennessy v. State , 660 S.W.2d 87, 90 (Tex. Crim. App. 1983).

Warrant affidavits should be interpreted in a common-sense and realistic manner, and

the reviewing magistrate is permitted to draw reasonable inferences from the facts

supporting the averments. Boley , 16 S.W.3d at 97 (citing Lagrone v. State , 742

S.W.2d 659, 661 (Tex. Crim. App. 1987)). In resolving the issue of sufficiency, we

must conduct an independent review, deferring to the issuing magistrate's original

decision, to determine whether the magistrate had a “substantial basis” for concluding

that probable cause existed for the issuance of a warrant. State v. Escobar , 764

S.W.2d 570, 572 ( Tex. App.—Houston [1st Dist. ] 1989, pet. ref’d).

Discussion

Appellant’s attack on the investigating officer’s affidavit centers primarily on

two contentions: (1) that the affidavit does not adequately establish the reliability of

the anonymous informant, and (2) that the affidavit does not show any independent

confirmation of the informant’s claims. We disagree. The affidavit contains ample

evidence of both the informant’s reliability and subsequent investigation by the

affiant. The anonymous informant provided a “description of the scene” and

recounted “details known only to the Affiant and those present at the event”—in other

words, the informant had information about the burglary that had not been publicly

released, which corroborated her claim that she had been told of the crime by one of

its participants. Additionally, the affidavit states that the investigating officer, after

speaking with the informant, contacted appellant’s cousin and aunt, and that the aunt

confirmed the informant’s statement about appellant’s role in the robbery.

We hold that the magistrate had a substantial basis for concluding that probable

cause existed for the issuance of an arrest warrant for appellant and overrule

appellant’s first issue.

Motion to Suppress

In his second issue, appellant argues that the trial court erred in denying his

motion to suppress a blood sample obtained during his arrest because the blood

sample was obtained in violation of appellant’s state and federal Constitutional rights.

Specifically, appellant contends that the taking of the sample violated Section 1.06

and Chapter 18 of the Texas Code of Criminal Procedure because the sample was not

taken pursuant to a search warrant or with appellant’s consent. In support, appellant

cites a line of Texas and federal cases stemming from the United States Supreme

Court’s holding in Schmerber v. California that the taking of a defendant’s blood

implicates the Fourth Amendment’s protection against unreasonable searches and

seizures. See 384 U.S. 757, 767-68 , 86 S. Ct. 1826, 1834 (1966); Escamilla v. State ,

556 S.W.2d 796, 798 (Tex. Crim. App. 1977).

Appellant did not raise these contentions before the trial court in his motion to

suppress, at the pretrial hearing, or in his objections at trial. Where a complaint on

appeal does not comport with an objection made at trial, the error is not preserved on

the complaint. Schultze v. State , 177 S.W.3d 26, 41 ( Tex. App.—Houston [1st Dist. ]

2005, pet. ref’d) (citing Goff v. State , 931 S.W.2d 537, 551 (Tex. Crim. App. 1996) );

see also Swain v. State , 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (arguments not

specifically stated in motion to suppress or at hearing were not preserved for appeal).

Because he never objected to the admission of the blood sample on the grounds urged

in his second issue, appellant has failed to preserve the issue for review. See Schultze ;

Tex. R. App. P. 33.1(a). We overrule appellant’s second issue.

Texas Rule of Evidence 404(b) and Due Process

In his fourth issue, appellant complains that the prosecuting attorney’s reference

to the crime for which appellant was being tried as a “home invasion” rather than a

“burglary” violated Texas Rule of Evidence 404(b) and deprived appellant of due

process of law. However, the prosecuting attorney referred to the crime as a home

invasion several times at trial without drawing an objection from appellant, including

during an extended exchange in which the prosecutor asked a testifying police officer

to explain why the crime in question was more consistent with a home invasion than

a burglary. Generally, unsworn statements by an attorney are not evidence. Peterson

v. State , 961 S.W.2d 308, 311 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

However, if such “non-evidence” is introduced and considered by the court without

objection, it then becomes evidence. Id . To preserve error under Texas law, a party

must object each time inadmissible evidence is offered unless that party has requested

a running objection or has objected out of the presence of the jury to the testimony he

deems objectionable on a given subject. Love v. State , 199 S.W.3d 447, 456 ( Tex.

App.—Houston [1st Dist. ] 2006, pet. ref’d) (citing Martinez v. State , 98 S.W.3d 189,

193 (Tex. Crim. App. 2003)). The record does not reflect any request for a running

objection or any objection out of the presence of the jury to the “home invasion”

language. Appellant failed to preserve the issue for review.

Appellant further argues that the prosecutor’s reference to the crime as a home

invasion constitutes fundamental error and therefore requires no objection because the

prosecutor’s language shifted the burden of proof in the case. An appellate court may,

in criminal cases, “tak[e] notice of fundamental errors affecting substantial rights

although they were not brought to the attention of the [trial] court.” Boler v. State , 177

S.W.3d 366, 373 ( Tex. App.—Houston [1st Dist. ] 2005, pet. ref’d) (citing Jasper v.

State , 61 S.W.3d 413, 420 (Tex. Crim. App. 2001)); Tex. R. Evid. 103(d). No

objection is required when the error is so egregious that it rises to constitutional

dimensions. Boler , 177 S.W.3d at 373 (citing Jasper , 61 S.W.3d at 421 ). However, as

this court noted in Boler , such occasions are rare, and appellant here simply states that

fundamental error exists while failing to point to any reason or authority to support

such a conclusion. The case appellant cites, Blue v. State , dealt not with prosecutorial

conduct but with comments made by a trial judge in the presence of the jury regarding

a criminal defendant’s plea negotiations. Thus, it is substantively distinguishable. See

41 S.W.3d 129 (Tex. Crim. App. 2000).

Moreover, Rule 404(b), the only rule specifically cited by appellant, is

inapplicable in this context. Rule 404(b) states that evidence of extraneous offenses is

not admissible at the guilt-innocence phase of a trial to prove that a defendant

committed the charged offense in conformity with a bad character. Blackwell v. State ,

193 S.W.3d 1 , 9 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Nobles v. State , 843

S.W.2d 503, 514 (Tex. Crim. App. 1992); Tex. R. Evid. 404(b). An extraneous offense

is defined as “any act of misconduct, whether resulting in prosecution or not, that is not

shown in the charging papers .” Rankin v. State , 953 S.W.2d 740, 741 (Tex. Crim. App.

1996) (emphasis in original). When he used the term “home invasion,” the prosecutor

was clearly referring to the offense for which appellant was on trial, not to any

extraneous offense. We do not find fundamental error and overrule appellant’s fourth

issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).