COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ARMANDO PINEDO, ) No. 08-04-00141-CR
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Appellant, ) Appeal from
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v. ) 171st District Court
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THE STATE OF TEXAS, ) of El Paso County, Texas
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Appellee. ) (TC# 20030D02291)
O P I N I O N
Armando Pinedo appeals his conviction of burglary of habitation with intent to commit sexual assault. Appellant was found guilty by a jury and sentenced by the court to twelve years in the Texas Department of Corrections Institutional Division. We affirm.
FACTUAL SUMMARY
On February 21, 2003, Espiranza Aguirre returned home around 10 p.m. She found Appellant sitting in his car which was parked in her front yard. Appellant was acquainted with Mrs. Aguirre’s husband and he wanted to know whether Mr. Aguirre was home. Mrs. Aguirre told him that her husband was out of town. She asked Appellant to move his car and told him she did not want him to be in her yard. Appellant moved his car and parked on the street.
The next morning around 9:15 a.m., Mrs. Aguirre was taking a shower when she heard noises in the living room. Mrs. Aguirre thought it was her husband returning home early and called out to him. Hearing no answer, she became alarmed. She opened the sliding glass door and found Appellant coming into the bathroom.
Appellant was wearing denim pants and tennis shoes but he was not wearing a shirt. Mrs. Aguirre asked why he was there and told him to leave. Appellant motioned for her to calm down. As Appellant came towards her, Mrs. Aguirre got out of the shower and pushed Appellant out of the way. She grabbed the telephone which she had placed on the toilet next to the shower and ran into the hallway. Appellant chased her and tried to grab and bite her breasts. He told her he wanted to be with her, that she should let him suck her all over, that it had been a long time since he had had sex, and that he was going to make her a woman. Appellant was also trying to unbutton his pants. Mrs. Aguirre ran into the kitchen where she picked up some clothes she had left out to iron. She put on the clothing and then ran outside through the kitchen door. She ran barefoot to her neighbor’s house and with the phone in her hand, she dialed 911.
Appellant brings two issues for our review. In Point of Error One, he contends the trial court erred in failing to grant a directed verdict because the evidence was legally and factually insufficient to support the conviction. In Point of Error Two, he complains that the trial court erred in failing to grant a continuance of the sentencing phase because his wife was unable to testify.
SUFFICIENCY OF THE EVIDENCE
We begin with the caveat that we may only consider Appellant’s legal sufficiency challenge. This is true for two reasons. First, a claim that the trial court erred in granting a directed verdict is a claim that the evidence is legally insufficient. A directed verdict may not be granted on the basis of factual insufficiency. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996)(“We treat a point of error complaining about a trial court’s failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence.”). Secondly, Appellant has improperly briefed the issue. He has not addressed the factual sufficiency standard of review, he has not argued how the evidence is factually insufficient, and he asks only that we reverse and remand with instructions that the trial court enter a judgment of acquittal. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997)(point of error insufficiently briefed where appellant generally discussed points of error but did not propose a standard of review or specifically argue how the evidence was insufficient); Clewis v. State, 992 S.W.2d 126, 133-134 (Tex.Crim.App. 1996)(rendering judgment of acquittal is the appropriate remedy when a legal sufficiency claim is sustained). For these reasons, we overrule his factual sufficiency complaint.
Standard of Review
In reviewing the legal sufficiency of Appellant’s conviction, we must view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2788, 61 L. Ed. 2d 560 (1979); Johnson v. State 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The standard of review is the same for convictions based on direct or circumstantial evidence. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Because the trier of fact is in the best position to review the evidence first hand we must give due deference to the trier of facts determinations regarding the weight and credibility of the evidence. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991), citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988); Johnson, 23 S.W.3d at 9; Tex.CodeCrim.Proc.Ann. art. § 38.04 (Vernon 1979 & Supp. 2004). Any inconsistencies in the evidence will be resolved in favor of the verdict. Matson, 819 S.W.2d at 843.
Elements of the Offense
Appellant was indicted for burglary of habitation with the intent to commit a sexual assault. In order to convict, the State had to prove: (1) Appellant intentionally and knowingly, (2) without the effective consent of the owner, (3) entered a habitation, (4) with the intent to commit the felony of sexual assault. Tex.Pen.Code Ann. § 30.02 (a)(1)(Vernon 2003). Appellant complains the evidence is legally insufficient to show (1) that he lacked consent to enter the Aguirre home, and (2) that he had the requisite intent to commit a sexual assault.
Consent
Appellant argues he was regularly welcomed into the Aguirre home and he was unaware he did not have consent to enter the property. He contends that even though Mrs. Aguirre did not give him permission to come inside, Mr. Aguirre had regularly allowed Appellant to stay at the home. Because the Aguirres only had one bathroom, Appellant suggests one could reasonably infer that he had permission to use the bathroom whenever Mr. Aguirre allowed him to spend the night.
Contrary to Appellant’s assertions, both Mr. and Mrs. Aguirre testified they did not give Appellant permission to enter their home. Testimony from homeowners is direct evidence a defendant did not have consent to enter. Chavez v. State, 479 S.W.2d 687, 688-89 (Tex.Crim.App. 1972)(testimony from victim that he did not give consent for anyone to break into and enter his motor vehicle was direct evidence); Hernandez v. State, 804 S.W.2d 168, 169 (Tex.App.--Houston [14th Dist.] 1991, pet. ref’d)(testimony from victim is direct evidence she did not consent to sexual assault). The testimony also established that Appellant’s access to the Aguirre household was limited to the garage, where Mr. Aguirre allowed him to sleep when he (Appellant) was drunk. There were only one or two occasions when Mr. Aguirre escorted Appellant into his house in order to have a cup of coffee. Mr. Aguirre also testified he told Appellant not to visit when he was not there.
Bearing in mind that we must view the evidence in a light most favorable to the judgment, we conclude the evidence was legally sufficient to prove Appellant did not have consent to enter the Aguirre household on February 22, 2003. Goodman v. State, 66 S.W.3d 283, 286 (Tex.Crim.App. 2001)(direct evidence of “X” fact is always legally sufficient to support a finding of “X” fact).
Intent
Appellant also complains the evidence was legally insufficient to prove he entered the Aguirre home with the intent to commit a sexual assault. Appellant argues that he did not actually touch Mrs. Aguirre, he did not use a weapon, he did not attempt to disguise himself , and he merely was asking Mrs. Aguirre have sex with him.
The jury, as the factfinder, was empowered to determine the issue of intent. Moreno v. State, 702 S.W.2d 636, 641 (Tex.Crim.App. 1986). The jury could have inferred Appellant possessed the requisite intent from either his words, acts, or conduct and the surrounding circumstances. Guevara v. State, 152 S.W.3d 45, 49-50 (Tex.Crim.App. 2004); DeLeon v. State, 77 S.W.3d 300, 312 (Tex.App.--Austin 2001, pet. ref’d); Sharpe v. State, 881 S.W.2d 487, 489 (Tex.App.--El Paso 1994, no pet.). Because it is difficult to prove by direct evidence what a defendant intended at the time of the crime, a jury may base its inferences on circumstantial evidence. Guevara, 152 S.W.3d at 49-50; Avila v. State, 15 S.W.3d 568, 573 (Tex.App.--Houston [14 Dist.] 2000, no pet.); Puente v. State, 888 S.W.2d 521, 527 (Tex.App.--San Antonio 1994, no pet.). The testimony established that Appellant approached Mrs. Aguirre while she was naked in the shower. Once Mrs. Aguirre saw Appellant, she told him to leave. Appellant then came towards her and chased her as she ran out of the bathroom. While running after her, Appellant made sexual comments, tried to grab and bite her breasts, and tried to unbutton his pants.
The credibility of Mrs. Aguirre’s testimony was left to the determination of the jury. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). The jury could have reasonably inferred from Appellant’s words, actions, conduct, and the surrounding circumstances that he intended to sexually assault Mrs. Aguirre. In viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found Appellant was guilty of the charged offense. Point of Error One is overruled.
MOTION FOR CONTINUANCE
In Point of Error Two, Appellant contends his motion for continuance should have been granted so that his wife could testify on his behalf. Before the punishment hearing began, defense counsel orally requested a continuance. He had tried to reach Appellant’s wife the day before, but she would not return his phone calls. On the day of the hearing, counsel reached her by phone and she told him she would be unable to attend because her employer said that if she missed any more work, she would be fired. She provided the sole income for the family and could not afford to be fired. Counsel asked for a continuance so the witness could either testify late in the afternoon after she finished work or by telephone. The prosecutor suggested that the State proceed with its evidence and then begin at 1 p.m. with the defense witnesses. While this was acceptable to the court, defense counsel explained that the witness would not be able to attend until 2 or 3 p.m. The court asked whether the witness had a lunch hour, but counsel explained that her lunch hour had already passed. At this point, the court denied the motion and proceeded with the sentencing hearing. After the State rested, defense counsel re-urged his motion and explained that the witness’s testimony was needed to assist the court in determining whether Appellant had a drinking problem. Once again, the trial court denied the motion.
Preservation of Error
A motion for continuance must be sworn and in writing. Tex.Code Crim.Proc.Ann. arts. 29.03, 29.08 (Vernon 1989); Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999). Appellant’s motion was not in writing nor was it sworn to by a person with personal knowledge of the facts. Tex.Code Crim.Proc.Ann. arts. 29.03, 29.08; Dewberry, 4 S.W.3d at 755 (a motion for continuance not in writing or sworn to preserves nothing for review). Appellant has failed to preserve error.
Due Diligence
We review the denial of a motion for continuance under the abuse of discretion standard. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002). A trial court abuses its discretion if the defendant can establish he was prejudiced by the denial of the motion. Id. A trial court does not abuse its discretion where a defendant has failed to exercise due diligence. Ramirez v. State, 842 S.W.2d 796, 799-800 (Tex.App.--El Paso 1992, no pet.).
Even if Appellant had complied with the procedural requirements, he has not established that he acted with due diligence in securing his wife’s presence in court. He has not explained why a subpoena was not prepared the day before when Appellant’s wife did not return telephone calls, nor has he discussed whether a subpoena would have resolved the employer’s reticence about an employee missing work. Ramirez, 842 S.W.2d at 800 (defendant did not exercise due diligence because he failed to apply for service of process for witness who was anticipated to testify). We
overrule Point of Error Two. Having overruled both points of error, we affirm the judgment of the trial court.
November 30, 2005
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)