NUMBER 13-98-111-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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JULIO GENARO SERNA, Appellant,
THE STATE OF TEXAS, Appellee.
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Before Chief Justice Seerden and Justices Hinojosa and Yañez
Opinion by Justice HinojosaA jury found appellant, Julio Genaro Serna, guilty of the offense of burglary of a habitation. After he pleaded "true" to the enhancement paragraphs in the indictment of two prior convictions for burglary of a habitation, he was sentenced to life imprisonment as a habitual offender. By two issues, appellant contends: (1) the trial court erred by refusing to allow evidence favorable to him to be presented to the jury and (2) the evidence is factually insufficient to support his conviction. We affirm.
A. Factual SufficiencyBy his second issue, appellant contends the evidence is factually insufficient to support his conviction.
In assessing a factual insufficiency claim, we review the evidence in support of and contrary to the trier of fact's findings to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. Johnson v. State, No. 1915-98, 2000 Tex. Crim. App. LEXIS 12, at *21 (Tex. Crim. App. Feb. 9, 2000); see also Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We consider all of the evidence in the record related to the appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). However, we are not free to reweigh the evidence and set aside a jury verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135. Only if the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, will we reverse the verdict and remand for a new trial. Clewis, 922 S.W.2d at 133-34; Rosillo v. State, 953 S.W.2d 808, 813 (Tex. App.--Corpus Christi 1997, pet. ref'd).
The State presented the following evidence against appellant. On June 26, 1996, Opal Leftwich observed a stranger enter her sister's mobile home in Corpus Christi while her sister and brother-in-law were at work. Opal called her daughter, Cheryl, and granddaughter, Kimberley, who lived in the same mobile home park. Cheryl used a key to enter the mobile home through the back door, and she saw appellant standing in the living room looking out the front window. Opal was waiting near the front door with a brick in her hand. When appellant came out the front door, she threw the brick at him, and she and Cheryl began to chase him. Opal grabbed appellant's shirt, but he shook her off and fled. Opal got up and continued the chase. Opal and Cheryl both saw a white pick-up truck driven by a younger man approach appellant and slow down. Appellant jumped over the tailgate into the bed, and the truck sped away.
At this point Kimberley, who had put her infant son in his stroller, arrived in the street. She and her baby were almost hit by the fleeing truck. Carlos Enriquez, the victim's husband, drove up after being alerted by Opal. He tried to cut off the pick-up, but it swerved around him and continued. Enriquez followed the truck, but it eluded him. When the police arrived, Opal and Kimberley reported the license plate number of the truck. All four witnesses gave a description of appellant and the white truck. The victim's home had been ransacked, and she determined that a diamond ring and costume jewelry were missing, along with some change and cigarettes. The white truck was registered to Jesusa Hinojosa, appellant's wife. Opal picked appellant's picture out of a photo array as being a photograph of the man she saw break into her sister's home.
Appellant presented evidence of several different defensive theories: (1) that he was physically incapable of running and jumping into the bed of a large pick-up truck; (2) that he could not have burglarized the victim's home because he was in Robstown with a friend all that day; and (3) that another man had possession of the truck during the time of the burglary. A physician testified that appellant had problems with acute gout in his knee, a condition which could restrict mobility at times. There was also some evidence that appellant had a lower-back problem. Appellant's long-time friend Tomas Gonzalez testified that appellant was with him at his home in Robstown from approximately 9:00 a.m. until 4:00 p.m. on the day of the incident, helping him with yardwork and a water pipe repair. Appellant's wife testified that she dropped off appellant that morning in Robstown and drove the truck to work. Later that day, appellant's cousin came by and borrowed the truck, which he returned later in the day.
After reviewing all of the evidence, we cannot say that the verdict was against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 133-34. On the contrary, the record contains substantial evidence supporting the verdict, and while there is some evidence tending to support appellant's claim of innocence, under a factual sufficiency review, the fact finder is recognized as the sole judge of the credibility of the witnesses and the weight to be given their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). The jury may resolve or reconcile conflicts in the testimony as it sees fit. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Clewis, 922 S.W.2d at 133; Haskins v. State, 960 S.W.2d 207, 209 (Tex. App.--Corpus Christi 1997, no pet.). In our review, we must be careful not to intrude on the jury's role. Santellan, 939 S.W.2d at 164. In assessing factual sufficiency, we do not decide the existence or nonexistence of a vital fact, decide the truth or falsity of proffered evidence, or judge the credibility of witnesses; if reasonable minds could differ about the conclusions to be drawn from the evidence, we may not reverse for factual insufficiency. Scott v. State, 934 S.W.2d 396, 399 (Tex. App.--Dallas 1996, no pet.). In other words, we do not sit as the thirteenth juror. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
Using these standards, the jury was within its power to reject, in whole or in part, the testimony tending to show appellant did not commit the burglary and to believe the eyewitness accounts and other evidence indicative of appellant's guilt. We hold the evidence is factually sufficient to support the jury's verdict. Appellant's second issue is overruled.
B. Exclusion of Evidence By his first issue, appellant contends the trial court erred by
refusing to allow Matt Garcia, the trial court bailiff, to present evidence
favorable to appellant to the jury.
During a break in the trial, and outside the presence of the jury, Garcia looked at the photo array from which Opal had picked out appellant's photograph, turned his back to appellant, tried to pick him out of the array, and failed. Garcia picked photograph number four, and appellant's photograph was number six. Because identification was at issue in the trial, appellant wanted Garcia to testify concerning his inability to distinguish appellant in the array, and referenced article 36.24 of the code of criminal procedure which provides:
The sheriff of the county shall furnish the court with a bailiff
during the trial of any case to attend the wants of the jury
and to act under the direction of the court. If the person
furnished by the sheriff is to be called as a witness in the
case he may not serve as bailiff.
Tex. Code Crim. Proc. Ann. art. 36.24 (Vernon 1981).
The prosecutor objected to having Garcia testify stating, "[T]hat's in violation of the rule(1) . . . we've been talking about this case with [Garcia]." After appellant made an offer of proof by eliciting testimony from Garcia about the incident, the trial court sustained the State's objection and excluded Garcia's testimony.
It is well-settled that an appellate court will not disturb a trial court's ruling concerning the admission or exclusion of evidence absent an abuse of discretion. Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993); Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991). The trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Erdman, 861 S.W.2d at 895; Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), cert. denied 509 U.S. 926 (1993); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)(op. on reh'g.). Abuse of discretion occurs only when the trial court "applies an erroneous legal standard or when no reasonable view of the record could support its conclusion." DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1985).
On appeal, appellant argues only that article 36.24 cannot prevent a bailiff from testifying when the need for his testimony is not known until after the trial begins. However, that is not the basis upon which the trial court sustained the State's objection to the proffered testimony. The State objected to Garcia's testimony on the basis that the Rule had been invoked, and the trial court sustained this objection. Appellant has failed to brief this issue. An issue is waived where it is not supported by any argument. Tex. R. App. P. 38.1(h); Aldrich v. State, 928 S.W.2d 558, 559 n. 1 (Tex. Crim. App.1996). An issue is also waived by an inadequate argument. Lewis v. State, 911 S.W.2d 1, 5 n. 8 (Tex. Crim. App.1995).
Even if this issue had been properly preserved and briefed, it would still fail. Disqualification of a defense witness for violation of the Rule must be viewed in the light of the defendant's constitutional right to call witnesses on his behalf. Davis v. State, 766 S.W.2d 236, 241 (Tex. Crim. App. 1989); Tell v. State, 908 S.W.2d 535, 541 (Tex. App.--Fort Worth 1995, no pet.). Generally, a defense witness cannot be excluded solely for violation of the Rule, although the right to exclude under "particular circumstances" is within the sound discretion of the trial court. Davis, 872 S.W.2d at 745; Webb v. State, 766 S.W.2d 236, 241 (Tex. Crim. App. 1989). In determining whether to disqualify a witness under the Rule, the trial court must balance the interest of the State and the accused, consider alternative sanctions, and consider the benefit and detriment arising from a disqualification in light of the nature and weight of the testimony to be offered:
[w]here the "particular and extraordinary circumstances"
show neither the defendant nor his counsel have consented,
procured, connived or have knowledge of a witness or
potential witness who is in violation of the sequestration
rule, and the testimony of the witness is crucial to the
defense, it is an abuse of discretion exercised by the trial
court to disqualify the witness.
Webb, 766 S.W.2d at 244 (emphasis added); Tell, 908 S.W.2d at 543. Appellant has made no showing that the bailiff's testimony was crucial to his defense and, indeed, it is questionable whether this testimony was even relevant. Appellant's first issue is overruled.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 3rd day of August, 2000.
1. Tex. R. Crim. Evid. 613, which was in effect at the time of the trial, had been invoked. Rule 613 provided, "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion."