Opinion issued October 30, 2014




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-13-00643-CR
                         ———————————
            MARCOS ANTONIO MEJIA-CACERES, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 230th District Court
                          Harris County, Texas
                      Trial Court Case No. 1393062


                        MEMORANDUM OPINION

     Marcos Antonio Mejia-Caceres appeals a judgment convicting him of

burglary of a habitation and committing or attempting to commit the felony of

impersonating a public servant. See TEX. PENAL CODE ANN. § 30.02(d)(2) (West

2011); § 37.11(a) (West 2011). After a jury found him guilty, the trial court
sentenced him to 25 years in prison. In his sole issue on appeal, Mejia-Caceres

contends that the trial court erred by admitting during the guilt-innocence phase of

the trial evidence of a second burglary he committed immediately after the charged

offense. We affirm.

                                   Background

      At trial, Tamiko Haywood, one of the complainants, testified that she and

her husband, son, and brother-in-law were staying together in a room at the Palace

Inn hotel because they were in the process of moving from one apartment to

another, and their new apartment was not ready yet. Around 2:00 a.m., Tamiko

awoke to loud banging on the door and someone saying loudly, “Police, open up.”

Her brother-in-law, Troy, opened the door with Tamiko’s husband Michael behind

him, and two men pushed open the door and pepper sprayed, then handcuffed,

Troy and Michael, and made them lie down on the floor. When Tamiko’s 16-year-

old son started to get out of bed, the intruders pepper sprayed him also.

      Both men were wearing what appeared to Tamiko to be police uniforms, and

Tamiko believed that they were police. The men demanded identification, drugs,

and money, and claimed that the hotel front office had called them to report that

someone in the room was “smoking [] dope.”                Tamiko gave them her

identification, but told them that no one in the room had any drugs. The intruders

stole Tamiko’s phone and $1,100 that she had for moving expenses. They left



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after about 15 minutes, with one of them saying “When the police get here, tell

them Sergeant . . . said it’s the wrong room.”

      Tamiko and her family watched the men drive away in an old red Jeep and

realized that they were not truly police, so they went to the front office to report the

burglary. Tamiko later called her stolen cell phone, which was answered by real

police officers, who came to the hotel and brought the family to a gas station where

Tamiko identified Mejia-Caceres as one of the two burglars.

      Tamiko’s husband, Michael, testified similarly that the two men knocked

loudly on the door and said, “Open the door, police.” He believed that the men

were police officers when they first entered the room because they were wearing

police uniforms and told him and Troy, “Get down. Police,” before handcuffing

them. Michael testified that Mejia-Caceres was screaming and kept demanding to

know where the drugs and money were. Michael told the men that they did not

have anything and begged them to leave. The other man removed Troy’s and

Michael’s handcuffs before they left the room. When the family watched the men

get into the red Jeep, Michael realized they were not police. Michael identified

Mejia-Caceres as one of the intruders.

      Houston Police Department Officer C. Calabro, with the police

impersonation squad, testified that she investigated the case. She testified that

surveillance cameras showed the two men knocking on multiple doors at the



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Palace Inn until they found the room occupied by Tamiko’s family. She testified

that the uniforms the two men were wearing when they were apprehended had

many similarities to police uniforms. On cross-examination, she admitted that

many security companies have uniforms that are similar to police uniforms and

that merely wearing a security company uniform does not mean that a person is

impersonating a police officer.

      Two witnesses at trial testified about a different burglary committed by the

intruders the same evening. Abraham Proo testified that later the same night, he

and his girlfriend were in the living room of his apartment when someone loudly

banged on the door and screamed something about “either open up the doors . . .

police officers or something like that.” He looked through the peephole and saw

two men in uniform. Believing the men were police and assuming they had the

wrong apartment, Proo cracked the door and the men pushed it open. One of the

men told Proo to get on the floor, that they had received a complaint about a lot of

traffic at the apartment, and demanded drugs and money.

      Mejia-Caceres locked the front door behind them, and Proo became

suspicious and called for his brother-in-law, who was asleep in a bedroom with

Proo’s sister. Proo told the men they did not have any drugs and asked to see their

badges, but they refused, at which point Proo realized that they were probably not

officers. Proo told his sister to call the police, and she did. When Mejia-Caceres



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saw Proo’s sister on the phone with the police, he opened the apartment door,

looked at the apartment number, and said they had made a mistake and gone to the

wrong apartment. The two men then left, and Proo followed them. He was able to

flag down an officer, who detained the two men at a gas station.

      Nelson Lomas, Proo’s brother-in-law, also testified about the Proo burglary,

and his testimony was consistent with Proo’s. Lomas testified that he believed the

men were police officers because he heard them say, “HPD . . . get on the the

ground,” and that they got a call that drugs were being sold out of the apartment.

                                    Discussion

      In his sole point of error, Mejia-Caceres contends that the trial court erred in

admitting evidence of the Proo burglary.

A.    Standard of Review

      We review a trial court’s ruling on admissibility of extraneous offenses

under an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343

(Tex. Crim. App. 2009). We will not reverse a trial court’s ruling on evidentiary

matters unless the decision was outside the zone of reasonable disagreement.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). If the trial

court’s ruling can be justified on any theory of law applicable to that ruling, the

ruling will not be disturbed. De La Paz, 279 S.W.3d at 344 (citing Sewell v. State,

629 S.W.2d 42, 45 (Tex. Crim. App. 1982) (“When a trial court’s ruling on the



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admission of evidence is correct, although giving a wrong or insufficient reason,

this Court will not reverse if the evidence is admissible for any reason.”)).

B.    Applicable Law

      Under Texas Rule of Evidence 404(b), evidence of extraneous crimes,

wrongs, or acts are not admissible at the guilt-innocence phase “to prove the

character of a person in order to show action in conformity therewith” but are

admissible to prove other matters, such as “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident” if the

accused is given reasonable notice of the State’s intent to introduce the evidence.

TEX. R. EVID. 404(b). Rebuttal of a defensive theory is “one of the permissible

purposes for which relevant evidence may be admitted under Rule 404(b).” Moses

v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).

C.    Analysis

      Mejia-Caceres contends that the trial court erred in admitting evidence of the

Proo burglary because it was not same transaction contextual evidence and was not

admissible for any purpose under Rule 404(b).

      We need not consider whether the Proo burglary constituted same

transaction contextual evidence, because evidence of the Proo burglary was

admissible to rebut Mejia-Caceres’s defensive theory, which was that he did not

intend to impersonate a police officer.        Mejia-Caceres’s counsel elicited an



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admission from Officer Calabro that wearing a security officer’s uniform does not

in itself constitute an attempt to impersonate a police officer. He elicited a similar

admission from Tamiko. In closing, defense counsel argued that, although Mejia-

Caceres and his partner were wearing security guard uniforms, it was merely to

gain admittance to the apartment, and it “wasn’t about being or pretending to be a

peace officer.”

      Extraneous offense evidence is admissible under Rule 404(b) to show intent.

See TEX. R. EVID. 404(b); Rubio v. State, 607 S.W.2d 498, 500–01 (Tex. Crim.

App. 1980) (“This Court has consistently held that when a defendant raises a

defensive theory of lack of intent to wrongfully engage in criminal conduct, an

extraneous offense is admissible by way of rebuttal on the issue of intent.”). Here

the State offered evidence of the Proo burglary to rebut the defensive theory that

Mejia-Caceres did not intend to impersonate a police officer. See Moses, 105

S.W.3d at 626. Specifically, the testimony of Proo and Lomas to the effect that the

intruders (1) announced that they were police and (2) claimed to have received a

tip regarding drug activity in the apartment, as they had during the commission of

the charged offense, was probative because it tended to show that Mejia-Caceres’s

impersonation of a police officer during the commission of the charged offense




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was intentional. 1 See TEX. R. EVID. 404(b); Moses, 105 S.W.3d at 626. We hold

that evidence of the Proo burglary was admissible for this purpose, and,

accordingly, the trial court did not abuse its discretion in admitting it. See Moses,

105 S.W.3d at 627 (trial court does not abuse discretion in admitting extraneous

offense evidence that rebuts defensive theory); see also Johnson v. State, 932

S.W.2d 296, 302 (Tex. App.—Austin 1996, pet. ref’d) (when defendant raises

defensive theory that charged offense was not intentional, intent is put at issue).

                             Modification of Judgment

      A first-degree burglary offense as defined by Section 30.02(d)(2) of the

Penal Code can be committed in one of two ways. Either a person can commit

burglary “with intent to commit” a felony other than felony theft, or a person can

commit burglary having “committed or attempted to commit” a felony other than

felony theft. TEX. PENAL CODE ANN. § 30.02(d)(2). Mejia-Caceres was convicted

of burglary of a habitation and committing or attempting to commit impersonation

of a public servant.     However, the judgment reflects that Mejia-Caceres was




1
      The jury was correctly instructed that it could consider evidence relating to the
      Proo burglary only if it found beyond a reasonable doubt that Mejia-Caceres
      committed the Proo burglary, and even then, only for purposes of determining
      “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident . . . .” See TEX. R. EVID. 105(a) (when evidence is
      admissible for limited purpose, trial court, upon request, shall restrict evidence “to
      its proper scope and instruct the jury accordingly”).

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convicted of the other variety of Section 30.02(d)(2) burglary, affirmatively stating

that it was “burglary with intent to commit other felony.”

      “An appellate court has the power to correct and reform a trial court

judgment ‘to make the record speak the truth when it has the necessary data and

information to do so.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet. ref’d)); see also TEX. R. APP. P. 43.2(b) (court of appeals

may “modify the trial court’s judgment and affirm it as modified”). Here, the

indictment and the guilt-innocence jury charge reflect that Mejia-Caceres was

charged with and convicted of burglary of a habitation and committing or

attempting to commit the felony of impersonating a public servant. We modify the

trial court’s judgment to reflect that Mejia-Caceres was convicted of burglary of a

habitation and committing or attempting to commit impersonation of a public

servant. See Jackson v. State, 288 S.W.3d 60, 64 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (reforming trial court’s erroneous judgment stating appellant was

convicted of aggravated assault against public servant to reflect appellant was

convicted of aggravated assault where record showed jury found appellant guilty of

only latter offense).




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                                   Conclusion

      We modify the trial court’s judgment to reflect that Mejia-Caceres was

convicted of burglary of a habitation and committing or attempting to commit

impersonation of a public servant, and as modified, affirm the judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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