







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
                                                                              )
                                                                              )             
No.  08-03-00392-CV
                                                                              )
                                                                              )                   Appeal from the
                                                                              )
IN THE MATTER OF R.J.R., A
Juvenile              )          
County Court at Law No. 1
                                                                              )
                                                                              )          
of Midland County, Texas
                                                                              )
                                                                              )                       (TC# 5039)
                                                                              )
 
 
O
P I N I O N
 
R.J.R., a
juvenile, appeals from a disposition order committing him to the Texas Youth
Commission.  On appeal, he raises six
issues:  three challenge the trial court=s denial of a motion to suppress, two
legal sufficiency issues, and a double jeopardy claim.  We affirm.




Midland Police
Officer Gary Kennedy testified that on June 7, 2002, at approximately
4 a.m., while patrolling a high crime and drug area, he came in contact
with the Appellant.  He found the
Appellant sitting in a 1987 Ford Tempo parked on Lee Street.  He asked the Appellant for his name and date
of birth.  He then asked the Appellant to
exit the vehicle because the Appellant was under age and in violation of the
city=s curfew
law.  He did a pat down to check for any
weapons.  He did not find any weapons,
but he did notice a bulge in Appellant=s
pant pocket.  Officer Kennedy then asked
Appellant=s
permission to search inside his pockets, and Appellant consented.  He testified that the bulge was soft and he
could feel a substance inside the bag. 
Based on his experience, he believed it was contraband.  He could also hear that it was a plastic
bag.  He then pulled out the bag and saw
that it contained marijuana.  Officer
Kennedy then placed the Appellant under arrest.
On October 10,
2002, at approximately 6 a.m., Midland Police Officers Steven McNeill and
Margarita Venegas were working undercover, patrolling in an unmarked white
Chevrolet Astro van in an attempt to capture auto burglars.  They received a call from dispatch that a
male wearing dark clothing was prowling in the neighborhood of Crest and
Ridgely.  The individual was seen peering
into the windows of parked cars, and it was reported that he could be
armed.  When Officers McNeill and Venegas
received the call, two other marked vehicles had already been dispatched, but
they went ahead and responded to the area as well.  




Officer Venegas
was driving the unmarked vehicle slowly through the neighborhood when they saw
the Appellant wearing dark clothing riding a bicycle.  Officer Venegas exited the vehicle and
approached the Appellant; she identified herself as a police officer and asked
him to stop.  Appellant did not stop, but
instead continued to pedal faster. 
Officer McNeill then testified that he stood in front of the bicycle,
identified himself as a police officer, and asked Appellant to stop.  Appellant did not stop, but rather veered to
the left and evaded Officer McNeill. 
Officer McNeill then pulled the Appellant off his bicycle and the
Appellant tried to pull away.  Officer
McNeill and Officer Venegas testified that they tried to pat down the
Appellant, but that he was fighting them, attempting to escape.  They finally wrestled him to the ground.  Appellant=s
pockets were bulging with approximately twenty items:  a two-way radio, two cell phones, a fart
machine, marijuana, an empty plastic bag, a homemade marijuana pipe, a
cigarette lighter, a Playboy magazine, and a CD.  The officers were able to locate the owners
of the cell phones.  The owners reported
that the cell phones had been stolen from their cars.
Once Appellant was
arrested, Detective Richard Faulkenberry of the Midland Police Department
interviewed him, and attempted to get a statement.  He also ran Appellant=s
fingerprints to see if there was a match with any auto burglaries in the past
recent months.  He found three cases with
a positive match, which included theft of two firearms.  
After further
investigation, the Appellant was charged with: 
(1) theft of a firearm on or about September 19, 2002; (2) theft of a
firearm on or about September 19, 2002; (3) burglary of a vehicle on or about
September 19, 2002; (4) burglary of a vehicle on or about September 27, 2002;
(5) burglary of a vehicle on or about October 4, 2002; (6) evading arrest or
detention on or about October 10, 2002; (7) resisting arrest on or about
October 10, 2002; (8) possession of a usable quantity of marijuana on or about
October 10, 2002; (9) burglary of a vehicle on or about October 10, 2002; (10)
burglary of a vehicle on or about October 10, 2002; and (11) possession of
marijuana on or about June 7, 2003.
At the beginning
of his jury trial, Appellant pled guilty to both vehicle burglaries occurring
on or about October 10, 2002.  Appellant=s counsel then presented a motion to
suppress evidence obtained on October 10, 2002. 
After hearing the testimony of Officer Steven McNeill, the trial
overruled Appellant=s
motion.  During the testimony of Officer
Kennedy, Appellant=s counsel
also made an oral motion to suppress the evidence seized on June 7, 2002, which
was also overruled by the trial court.  




A jury heard the
testimony of Appellant=s
arresting officers:  Officer McNeill and
Officer Venegas; of Detective Faulkenberry; of Officer Augusto Albo, who
responded to a auto burglary on September 27, 2002;  and of Officer Elias Hernandez, who responded
to the auto burglary on October 4, 2002. 
There was also testimony from two victims of the auto burglaries.   Identification Specialist, for the City of
Midland, Karen Hare also testified as to the positive identification of
Appellant=s
fingerprints in three of the cases. 
Crime Lab Investigator Bob Wheeler also testified that the amount of
marijuana found in Appellant=s
pocket on both June 7 and October 10 was of a usable quantity.
The jury also
heard the testimony of the Appellant.  He
testified that he had in fact broken into some vehicles in October of
2002.  He testified that he would go from
block to block checking for unlocked vehicles. 
He would only break into a vehicle if it was unlocked, moving on to the
next car if it was locked.  First, he
would travel one side of the block, and then the other, and then finally move
on to the next block, following the same procedure.  He further testified that he did this three
or four times a week.  He would steal
small items, such as CDs that would fit in his pant pockets, which he would
later sell to his friends.  He also
testified that on June 7, he did in fact have a usable quantity of marijuana on
his person, but that on October 10, the quantity was not a usable amount.  He also provided testimony regarding the
incident on October 10 and the other burglaries he was charged with.
At the conclusion
of the trial, the jury found Appellant guilty on all counts, and assessed a
punishment of confinement to the Texas Youth Commission for a period not to
exceed the time when he turns twenty-one years of age.  Appellant timely filed this appeal.




In Issues One,
Two, and Six, Appellant challenges the denial of his motion to suppress.[1]  Appellant=s
motion to suppress was seeking to have the evidence seized on June 7, 2002 and
on October 10, 2002 and all information obtained on that date to be suppressed
on the grounds that the stop was done without a warrant and without probable
cause.  In evaluating Appellant=s argument, we will apply criminal
law.  See In the Matter of R.S.C.,
940 S.W.2d 750, 751‑52 (Tex.App.‑-El Paso 1997, no writ), stating
that delinquency proceedings are quasi‑criminal in nature and that juveniles
are entitled to many of the constitutional protections that are afforded to
adult criminal defendants.
A defendant may
waive a prior objection to evidence by offering the same evidence or evidence
establishing the same facts as trial.  In
the Matter of R.S.C., 940 S.W.2d at 752, citing Narvaiz v. State,
840 S.W.2d 415, 430 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975,
113 S.Ct. 1422, 122 L.Ed.2d 791 (1993); Maynard v. State, 685 S.W.2d 60,
65 (Tex.Crim.App. 1985); Nicholas v. State, 502 S.W.2d 169, 174‑75
(Tex.Crim.App. 1973).  Under the
principle known as curative admissibility, the admission of improper evidence
cannot be asserted as grounds for reversal on appeal where the defendant, on
direct examination, gives testimony establishing the same facts as those to
which an objection was raised.  See
Rodriguez v. State, 919 S.W.2d 136, 138 (Tex.App.--San Antonio 1995, no
pet.), citing Thomas v. State, 572 S.W.2d 507, 513 (Tex.Crim.App. 1976).




Appellant
testified at trial regarding the information and evidence he attempted to
suppress with his motion.  Appellant
testified that he was in fact in possession of the marijuana on the night of
June 7, 2002 and October 10, 2002, and that he was in possession of the alleged
stolen items on October 10, 2002.  In
providing such testimony, Appellant established facts consistent with those he
tried to suppress.  Thus, we hold that
Appellant has waived such issues on appeal. 
See Rodriguez, 919 S.W.2d at 138. 
Appellant=s Issues
One, Two, and Six are overruled.
In Issue Four,
Appellant challenges the legal sufficiency of the evidence sustaining the
finding that Appellant resisted arrest. 
In Issue Five, Appellant challenges the legal sufficiency of the
evidence proving he evaded arrest.  
We have
traditionally applied the civil no evidence standard of review to legal
sufficiency challenges of juvenile disposition orders.  See In the Matter of A.S., 954
S.W.2d 855, 858 (Tex.App.--El Paso 1997, no pet.).  In considering the legal sufficiency, we
consider only the evidence and inference tending to support the finding under
attack and set aside the judgment only if there is no evidence of probative
force to support the findings.  In the
Matter of A.S., 954 S.W.2d at 861; In the Matter of T.K.E., 5 S.W.3d
782, 785 (Tex.App.--San Antonio 1999, no pet.). 

At trial, Officer
McNeill testified that on October 10, 2002, he was working the night shift,
assigned to the patrol division.  At
approximately 6 a.m., he received a call indicating that a male subject wearing
dark clothing was prowling around the residential neighborhood of Crest and
Ridgely.  The citizen that made the call
alleged that the subject was looking through car windows and could be possible
armed with a handgun.  The caller did not
indicated the subject=s
age or height.  At the time Officer
McNeill received the call, two other marked units had been dispatched to the
area, but he and his partner were working undercover, so they decided to
proceed to the area as well.




Officer Venegas
drove slowly around the area looking for an individual matching the
description.  Officer McNeill then
observed a male subject wearing dark clothing-black baggy cargo pants, and a long
hooded sweatshirt-riding a bicycle. 
Officer McNeill=s
partner, stopped the unmarked vehicle, exited the vehicle and approached the
subject, identifying herself as a police officer and requesting that he
stop.  The subject did not stop, but
rather looked at Officer McNeill=s
partner, his eyes got big, he said AOh
shit,@ and
began to pedal faster on his bicycle.  
Officer McNeill
then approached the Appellant by getting in front of the bicycle; he
identified  himself as a Midland Police
Officer and ordered Appellant to stop. 
Rather than stopping, Appellant veered to the left, evading him while
still riding his bicycle, forcing Officer McNeill to pull him off the
bicycle.  Officer McNeill asked Appellant
why he was trying to escape, but the Appellant continued to try to pull away.  Officer McNeill held the Appellant by his
arms, but Appellant continued to pull away, until Officer McNeill put him down
on the ground.




Officer Venegas,
Officer McNeill=s partner
on the night in question, testified that as she approached the Appellant, she
identified herself as a police officer and ordered the Appellant several times
to stop.  She testified that she was
wearing a raid jacket with writing on the back, which was legible in the dark.[2]  She also had on a belt gear, her badge, a
flashlight, and a radio.  She testified
that the Appellant did not stop when she asked him to, but continued riding his
bicycle.  She testified that when Officer
McNeill approach the Appellant, he was fighting her, trying to get away.  Appellant would not cooperate with the pat
down, but rather kept fighting her by swinging his arms in an attempt to hit
her, pulling away, using profanity, and not standing still, but rather pushing
away from her and Officer McNeill.  
Appellant also
testified at the trial.  Appellant
testified that on the night in question, he saw a white van come up to a stop
sign and that he stopped-for at least twenty seconds-to let it  pass by, but the van did not move, so he took
off on his bike.  He did not recognize
the van or know who was inside.  Then as
soon as he took off on his bike, a woman jumped out of the vehicle, but he did
not hear her say anything or did not know what she said.  Then he heard some noise, but he could not
make out what Officer McNeill was saying. 
Officer McNeill then tackled him off his bike.
Appellant
testified that he was thinking AWhat
is going on, man?  What is going on?@ 
He testified that when Officer McNeill tackled him, he fell on his
knees.  He then stood up and asked what
was going on, but Officer McNeill threw him on the ground.  He testified that he thought he was getting
jumped and that he was not swinging at the officers.  He was trying to get away, but only because
he thought he was getting jumped.  He
testified that it would have been different had they had on a uniform or a
badge, but he testified that they looked like civilians, so he did not know who
they were.  He did not see any writing on
the officer=s jackets
to indicate to him that they were police officers.
Viewing the
evidence in the light most favorable to the trial court=s
finding, we concluded that the evidence was legally sufficient to support the
trial court=s finding
that Appellant evaded and resisted arrest. 
See In the Matter of A.S., 954 S.W.2d at 861; In the Matter of
T.K.E., 5 S.W.3d at 785.  Issues Four
and Five are overruled. 




In Issue Three,
Appellant raises a double jeopardy complaint. 
Specifically, Appellant argues that theft is a lesser included offense
of burglary with the intent to commit theft. 
The charge contained the following:
(1)
Theft of a Firearm
 
Our law provides that
a person commits an offense if he unlawfully appropriates a firearm without the
owner=s consent
with intent to deprive the owner of the firearm.
 
September 19, 2002
 
Now, bearing in mind
the instructions and definitions contained herein, if you find from the
evidence beyond a reasonable doubt that on or about the 19th day of
September, 2002 in Midland County, Texas, the juvenile charged in this case did
then and there unlawfully, intentionally and knowingly appropriate, by
acquiring and exercising control over a firearm, a H&K rifle, without the
effective consent of Bryan Vinson, the owner of said property, with the intent
to deprive the owner of the said firearm, then you will find the juvenile
charged in this case has engaged in delinquent conduct and so say by your
verdict.
 
                                                              .               .               .
 
(2)
Theft of a Firearm
 
Our law provides that
a person commits an offense if he unlawfully appropriates a firearm without the
owner=s consent
with intent to deprive the owner of the firearm.
 
September 19, 2002
 
Now, bearing in mind
the instructions and definitions contained herein, if you find from the
evidence beyond a reasonable doubt that on or about the 19th day of
September, 2002 in Midland County, Texas, the juvenile charged in this case did
then and there unlawfully, intentionally and knowingly appropriate, by
acquiring and exercising control over a firearm, a Browning shotgun, without
the effective consent of Bryan Vinson, the owner of said property, with the
intent to deprive the owner of the said firearm, then you will find the
juvenile charged in this case has engage in delinquent conduct and so say by
your verdict.
 
                                                              .               .               .




(3)
Burglary of a
Vehicle
 
Our law provides that
a person commits the offense of burglary of a vehicle if he, unlawfully,
intentionally and knowingly, without the effective consent of the owner, enters
a vehicle or any part thereof with intent to commit theft.
 
September 19, 2002
 
Now, bearing in mind
the instructions and definitions previously set out and contained herein, if
you find from the evidence beyond a reasonable doubt that on or about the 19th
day of September, 2002 in Midland County, Texas, the juvenile charged in this
case did then and there unlawfully, without the effective consent of the
owners, Bryan Vinson, break into and enter a vehicle or any part of a vehicle
with intent to commit theft, then you will find the juvenile charged in this
case has engaged in delinquent conduct and so say by your verdict.
 
Appellant argues that the two
counts for theft of a firearm are lesser included offenses of the count for
burglary with the intent to commit theft, and that since he was convicted of
all three charges, he was subjected to double jeopardy.  




Appellant does not
indicated in his brief whether he is raising a federal or state double jeopardy
claim, so we assume he is raising both federal and state double jeopardy
claims.  Both the United State and Texas
Constitutions protect individuals from multiple punishments for the same
offense.  See Phillips v. State,
787 S.W.2d 391, 393 n.2 (Tex.Crim.App. 1990). 
Conceptually, the state and federal double jeopardy provisions are
identical and the Texas Constitution does not afford any different or greater
protections in this regard than does the Fifth Amendment.  See Stephens v. State, 806 S.W.2d 812,
814 (Tex.Crim.App. 1990); Ex parte Arenivas, 6 S.W.3d 631, 633
(Tex.App.--El Paso 1999, no pet.).  Since
Appellant does not argue that the Texas double jeopardy clause differs from the
Fifth Amendment double jeopardy clause, we will review Appellant=s double jeopardy as only a federal
claim.  See Hutchins v. State, 992
S.W.2d 629, 630 (Tex.App.--Austin 1999, pet. ref=d,
untimely filed).
The double
jeopardy clause of the Fifth Amendment of the U.S. Constitution provides that
no person shall Abe
subject for the same offense to be twice put in jeopardy of life or
limb . . . .@  U.S.
Const. amend. V.  This provision
applies to the states through the Fourteenth Amendment.  Benton v. Maryland, 395 U.S. 784, 787,
89 S.Ct. 2056, 2058, 23 L.Ed.2d 707 (1969); Cervantes v. State, 815
S.W.2d 569, 572 (Tex.Crim.App. 1991), cert. denied, 502 U.S. 1110, 112
S.Ct. 1213, 117 L.Ed.2d 451 (1992).  The
double jeopardy clause guarantees against (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same offense after
conviction, and (3) multiple punishments for the same offense.  Illinois v. Vitale, 447 U.S. 410, 415,
100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S.
161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); North Carolina v.
Pearce, 395 U.S. 711, 718, 89 S.Ct. 2072, 2077, 23 L.Ed.2d 656 (1969); Iglehart
v. State, 837 S.W.2d 122, 126‑27 (Tex.Crim.App. 1992).




Appellant failed
to make a timely request, objection, or motion before the trial court on the
issue of double jeopardy.  See Tex.R.App.P. 33.1.  A double jeopardy claim is forfeited if it is
raised for the first time on appeal unless the double jeopardy violation is
clearly apparent on the face of the record and when enforcement of usual rules
of procedural default serves no legitimate state interests.  Gonzalez v. State, 8 S.W.3d 640, 643
(Tex.Crim.App. 2000).  We must find that
Appellant satisfied both prongs of the test to hold he can raise his complaint
for the first time on appeal.  Roy v.
State, 76 S.W.3d 87, 93 (Tex.App.--Houston [14th Dist.] 2002, no pet.).  Appellant argues that because his case
involves a lesser included offense, and all three counts were before the trial
court, and the charge is now before this Court, that the face of the record
establishes double jeopardy.  We
disagree.  We do not find an apparent
double jeopardy violation on the face to this record.
The determination
whether an offense is a lesser included offense under Article 37.09(1) of the
Code of Criminal Procedures must be made on a case-by-case basis.  Jacob v. State, 892 S.W.2d 905, 907
(Tex.Crim.App. 1995).  An offense is a
lesser included offense if it is established by proof of the same or less than
all the facts required to establish the commission of the offense charged.  See Tex.Code
Crim.Proc.Ann. art. 37.09(1)(Vernon 1981).  To prove the offense of theft, the State is
required to show (1) a person, (2) unlawfully appropriate property, (3) with
intent, (4) to deprive owner of said property. 
See Tex.Pen.Code Ann.
' 31.03(a)(Vernon Supp. 2004-05).
To prove the
offense of burglary with the intent to commit theft, the State must show
(1)  a person, (2) without owner=s consent, (3) broke into or entered a
vehicle or any part of a vehicle, (4) with intent, (5) to commit a theft.  See Tex.Pen.Code
Ann. '
30.04(a)(Vernon 2003).  The burglary with
the intent to commit theft offense is complete if the burglarious entry is made
with the intent to commit a theft.  See
Garcia v. State, 571 S.W.2d 896, 899 (Tex.Crim.App. 1978).  It is not necessary to prove that the crime
of theft happened to obtain a conviction for burglary with the intent to commit
theft, as Appellant was charged with in this case.  See id. at 899.  Theft is not a lesser included offense of
burglary with the intent to commit theft. 
See id.  For this reason,
we find that there was no double jeopardy with regard to the theft and burglary
offenses.  We therefore hold that
Appellant failed to preserve his double jeopardy claim and overrule Issue
Three.
 




For the reasons
stated above, we affirm the trial court=s
judgment.  
 
 
June
9, 2005
DAVID WELLINGTON
CHEW, Justice
 
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.




[1]
Appellant=s brief
contains the following heading for Issue Six: 
AThe
evidence was legally insufficient to sustain a finding of that Appellant
committed the offense of possession of marijuana on October 10, 2002.@ 
However, other than providing us with the standard for a legal
sufficiency review, Appellant provides no analysis, beyond simply stating the
standard of review.  In the body of his
argument, we understand him to be making a challenge to the denial of his
motion to suppress and we will address Issue Six accordingly. 


[2]
Officer McNeill also testified that his partner was wearing a raid jacket with
the words Midland Police Department written in big white letters on the back of
the jacket.


