                                     NO. 07-03-0342-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                 SEPTEMBER 6, 2005
                           ______________________________

                               JOSEPH EMILIO SAUCEDA,

                                                                   Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

           FROM THE 9TH DISTRICT COURT OF MONTGOMERY COUNTY;

              NO. 03-05-03403-CR; HON. FRED EDWARDS, PRESIDING

                           _______________________________

                                 Memorandum Opinion
                           _______________________________


Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       After being found guilty via a non-jury trial and sentenced by the court, Joseph Emilio

Sauceda (appellant) appealed his conviction for arson. Through four issues, he contends

that 1) the evidence of his identity as the accused is legally and factually insufficient, 2) the

evidence that he personally set fire to the vehicle is legally insufficient, and 3) the trial

court’s incorrect admonishment as to the range of punishment caused his plea of true to
the enhancement paragraph of the indictment to be obtained in violation of the due process

clause of the Fifth Amendment. We affirm the judgment of the trial court.

                                      Background

      On October 18, 2000, Eddie Perez had reported to the Houston Police Department

that a black, four-door Chevy Impala SS had been stolen from the driveway of his home.

In late October 2000, appellant brought such a vehicle to his home. So too did he remove

parts from the car to sell them. Eventually, appellant had someone come to the house at

night with a tow truck to pick up the Impala. Appellant left the house contemporaneously

with the vehicle. About 20 minutes later, he returned nervous, anxious, upset and irate.

He also wanted his girlfriend, Shyllo Admire, to help him move the car parts he had

previously taken from the vehicle to a place underneath the house. Shortly thereafter,

Shyllo heard sirens.

      A burning Impala was found by the road with the motor, transmission, steering

wheel, seats, and rear axle missing. The location was about a block from appellant’s

residence. The vehicle identification number matched that of the vehicle reported stolen

by Eddie Perez.

                            Issues 1 and 2 - Identification

      In his first two issues, appellant complains that the evidence identifying him as the

accused is legally and factually insufficient to support his conviction. We overrule the

issues.

      The standards by which we review the legal and factual sufficiency of the evidence

are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani

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v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex.

Crim. App. 2000) for an explanation of them.

       The gist of appellant’s argument is that no witness at trial ever expressly identified

him, in-court, as the person accused in the indictment. The lack of a formal in-court

identification does not necessarily render evidence insufficient to establish the defendant’s

identity as the perpetrator.      See Purkey v. State, 656 S.W.2d 519, 520 (Tex.

App.–Beaumont 1983, pet. ref’d). Identity may be established by both circumstantial

evidence as well as reasonable inferences therefrom. Roberson v. State, 16 S.W.3d 156,

157 (Tex. App.–Austin 2000, pet. ref’d).

       In this bench trial, the factfinder was the trial court.         Furthermore, at the

commencement of the proceeding, the trial court asked appellant if he was Joseph Emilio

Sauceda, i.e. the person named in the indictment.           Appellant replied that he was.

Additionally, Mitchell Pratorius, the stepfather of Shyllo Admire, was asked during trial if he

knew “the defendant in this case, Joseph Sauceda” to which he responded “yes” and

further stated that Shyllo and appellant had lived together. Sheila Pratorius, Shyllo’s

mother, testified that her daughter had been in a relationship with “the defendant, Joseph

Sauceda” since she was 13 years old.           And, when asked if she previously had a

relationship with “the defendant in this case, Joseph Sauceda,” Shyllo herself stated she

had for about eight years.

       Next, appellant made no objection to the identification procedure utilized at trial and

does not claim on appeal that someone other than he was identified as the accused. See

Rohfling v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981) (stating that it was

incumbent upon the appellant to object to the identification procedure or present a bill of

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exceptions illustrating why the procedure would cause confusion viz the matter of identity

to preserve the issue for review). Under these circumstances and based on the logical

inferences to be drawn from the record at trial, the trial court was adequately apprised that

the witnesses were referring to appellant. See id. (rejecting the contention that the

absence of an in-court identification rendered the evidence of identity defective since the

circumstances were sufficient to apprise the factfinder that the witnesses were actually

referring to appellant). Consequently, we hold the evidence of appellant’s identity as the

accused to be both legally and factually sufficient.

                         Issue 3 - Person Who Started the Fire

       In his third issue, appellant challenges the legal sufficiency of the evidence to show

that he started the fire. We overrule the issue.

       In response to the allegation that there was no evidence identifying him as the

person who set the vehicle aflame, we note the testimony of Mitchell Pratorius. When

asked if appellant explained “anymore detail when he said that he torched it, what he meant

by that,” the witness said: “. . . [n]o . . . that’s all that was said was that he torched it.”

(Emphasis added). Appellant’s purported statement that “he” torched the car is some

evidence upon which a rational factfinder could conclude beyond reasonable doubt that

appellant personally set fire to the car. And, this conclusion is only buttressed by the

evidence that 1) appellant left the house at the time the car was towed, 2) he came back

about 20 minutes later, 3) he seemed nervous, anxious, upset and irate, 4) he made Shyllo

help him hide some of the car parts, 5) Shyllo heard sirens shortly thereafter, and 6) the car

was found burning about a block from appellant’s house.



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                                Issue 4 - Admonishment

       In his final issue, appellant argues that he was incorrectly admonished as to the

range of punishment. This purportedly resulted in his plea of true to the enhancement

paragraph in the indictment constituting a violation of the due process clause. We overrule

the issue.

       Assuming arguendo that appellant was misled when he admitted the enhancement

allegation to be true, the State nonetheless proved (via live testimony, pen pack

authentication, and fingerprint analysis) that appellant previously had been convicted of the

crime encompassed in the enhancement paragraph. Consequently, we hold, beyond

reasonable doubt, that the purported mistake did not contribute to the conviction or

punishment assessed.

       Having overruled each issue, we affirm the judgment of the trial court.



                                                  Per Curiam
Do not publish.




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