                          NUMBER 13-12-00557-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

GILBERT JOHN MELENDEZ,                                                 Appellant,

                                            v.

THE STATE OF TEXAS,                                                    Appellee.


                    On appeal from the 197th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes
      A jury convicted appellant, Gilbert John Melendez, of the offense of burglary of a

habitation. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The trial court assessed

punishment at five years’ confinement in the Texas Department of Criminal Justice,

Institutional Division, but suspended the sentence for seven years probation. By two

issues, appellant contends that the trial court committed reversible error by: (1) “denying
appellant’s motions for directed verdict because the evidence against him as a party to

another’s burglary was legally insufficient”; and (2) “by overruling appellant’s objection to

the State’s closing argument that the jury could find him guilty of burglary by ‘setting aside

the law and using your common sense.’” We affirm.

                                    I. BACKGROUND

       The evidence at trial showed Wenceslao Melendez (“Wenceslao”) returned home

from the grocery store to discover that his 32-inch Samsung television and jewelry box

were missing. Wenceslao noticed that the air conditioning unit had been removed from

the bedroom window and believed someone had gained entry to his house through that

window. He notified police of the incident shortly after discovering the missing items.

       Jonathan Taylor, a Brownsville Police Department detective, was assigned to

investigate the case. Detective Taylor discovered that a television matching the one

Wenceslao described was pawned the same day at a pawn shop approximately one mile

from Wenceslao’s home. Detective Taylor obtained the surveillance video from the

pawn shop. The video showed two males arriving in a red truck at the pawn shop, with

one male opening the front door of the store for the other male who was carrying a

television. One of the males, later identified as Juan Manuel Reyna, thereafter pawned

the television while appellant roamed around the store.           Detective Taylor showed

Wenceslao the video. Wenceslao identified appellant as being his second cousin and

next door neighbor and as being one of the two males entering the pawnshop.

       Appellant agreed to a recorded interview while he was in police custody for an

unrelated charge. During his interview, appellant stated that his friend, Reyna, came to


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his house and asked for help and that he followed Reyna to Wenceslao’s home, where he

saw that an air conditioning unit had been removed from a window. He saw a television

lying on the ground and helped Reyna move the television over the fence and onto

appellant’s property.    Appellant admitted that he “kind of figured real fast what he

[Reyna] had done”, and he also admitted that he knew Reyna did not have permission to

enter Wenceslao’s home. He further stated that he drove Reyna to the pawn shop in his

red truck and that Reyna bought him lunch after he pawned the television. Appellant

apologized to Wenceslao at the end of the interview.

                         II. SUFFICIENY OF THE EVIDENCE

       By his first issue, appellant challenges the sufficiency of the evidence to show that

appellant, acting alone or as a party with Reyna, burglarized the home. Specifically,

appellant argues that “acts committed after the offense is completed cannot make him a

party to the offense.”

A.     Standard of Review

       When reviewing evidentiary sufficiency, the court must ask itself whether, after

reviewing the evidence in the light most favorable to the verdict, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt—not

whether it believes the evidence establishes the verdict beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). The jury is the sole judge of a

witness's credibility and the weight to be given the testimony. Lancon v. State, 253

S.W.3d 699, 707 (Tex. Crim. App. 2008). The reviewing court should not act as a

thirteenth juror that substitutes its own opinion of the credibility and weight of the evidence


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for that of the fact-finder's. See Brooks v. State, 323 S.W.3d 893, 905 (Tex. Crim. App.

2010)(plurality op.). The reviewing court must resolve inconsistencies in testimony in

favor of the verdict and then ask whether a rational trier of fact could have found the

elements of the crime beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000).

       To measure sufficiency, we use the elements of the offense as defined by a

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. A person commits the offense of burglary if, (1)

without the effective consent of the owner, (2) he enters a habitation with (3) intent to

commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1).

       Under the law of parties, a person is criminally responsible for an offense

committed by the conduct of another if, “acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011).

When reviewing the sufficiency of the evidence to support a defendant's participation as a

party to the crime, the court may consider “events occurring before, during and after the

commission of the offense, and may rely on actions of the defendant which show an

understanding and common design to do the prohibited act.” King v. State, 29 S.W.3d




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556, 564 (Tex. Crim. App. 2000) (quoting Ranson v. State, 920 S.W.2d 288, 302 (Tex.

Crim. App. 1994)).

B.    Analysis

      The jury could reasonably infer from the evidence that Wenceslao’s home was

entered without his permission and with the intent to commit theft. Appellant knew that

Reyna had unlawfully entered Wenceslao’s home, and continued to assist Reyna in

completing the burglary. The jury could also reasonably infer that appellant was a party

to the offense because he helped Reyna move the television over the fence into his own

backyard knowing it was being stolen, and thereafter drove Reyna to a pawn shop to sell

it. This is evidence that appellant aided in the commission of the offense. See TEX.

PENAL CODE ANN. §702(a)(2). Further, appellant’s apology to his cousin could lead a

reasonable fact-finder to believe that he had the knowledge and intent to take part in the

burglary, and that he felt remorse afterwards. “A ‘consciousness of guilt’ is perhaps one

of the strongest kinds of evidence of guilt.” Hyde v. State, 846 S.W.2d 503, 505 (Tex.

App.—Corpus Christi 1993, pet. ref’d) (quoting Torres v. State, 794 S.W.2d 596, 598–600

(Tex. App.—Austin 1990, no pet.)). “It is consequently a well accepted principle that any

conduct on the part of a person accused of a crime subsequent to its commission, which

indicates a ‘consciousness of guilt’ may be received as a circumstance tending to prove

that he committed the act with which he is charged.” Torres, 794 S.W.2d at 598.

      We conclude the evidence was sufficient to support the jury’s verdict.         See

Brooks, 323 S.W.3d at 905. Appellant’s first issue is overruled.




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                            III.   IMPROPER JURY ARGUMENT

       By his second issue, appellant argues that the trial court erred by overruling his

objection to the State’s closing argument that the jury could find him guilty of burglary by

“setting aside the law and using your common sense.” Appellant contends that the

State’s closing argument was manifestly improper and resulted in an illogical verdict not

based on the law. Specifically, appellant complains about the following argument:

       [Appellant is ] trying to make it seem that if [he] didn’t go in the house, which
       he didn’t go in the house, then you should let him go, that he’s innocent.
       We all know that he’s not innocent. But setting aside the law and using
       your common sense, that’s not true. He’s guilty.

After the trial court overruled appellant’s objections, the State continued its argument, as

follows:

       At the end of the day, [Appellant] didn’t go in [Wenceslao’s house]. We all
       know that. And we never said that [Appellant went in] . . . .But the way we
       address that is through the law of parties.
       ....

       We took an oath to God, all of us, including the jury, to follow the law.

A.     Standard of Review

       The standard of review for improper jury argument is abuse of discretion. Powell

v. State, 63 S.W.3d 435,438 (Tex. Crim. App. 2001). To be permissible, jury argument

must fall within one of the following four general areas: (1) summation of the evidence,

(2) reasonable deductions from the evidence, (3) an answer to the argument of opposing

counsel, or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.

1999). In examining challenges to jury argument, this Court considers the remark in the

context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App.


                                              6
1988) (citing Denison v. State, 651 S.W.2d 754 (Tex. Crim. App. 1983)). Counsel is

allowed wide latitude in drawing inferences from the evidence so long as the inferences

drawn are reasonable, fair, legitimate, and offered in good faith. Id. at 398. Closing

argument “only becomes subject to reversal if, in light of the record as a whole, the

argument is extreme or manifestly improper, violative of a mandatory statute or injects

new facts, harmful to the accused, into the trial.” Felder v. State, 848 S.W.2d 85, 95

(Tex. Crim. App. 1992) (citing Bell v. State, 724 S.W.2d 780, 803 (Tex. Crim. App. 1986)).

B.    Analysis

      The State’s argument was made in response to defense counsel’s closing

argument regarding the entry requirement for burglary of a habitation. See Guidry 9

S.W.3d 133. Specifically, defense counsel implied that appellant could not be found

guilty unless appellant physically entered the home. In context it is apparent that the

prosecutor was appealing for the jury to use its common sense when considering the

evidence in relation to the law of parties. The State sought to remind the jury that the

evidence supported a finding that appellant could be found guilty as a party to the

burglary. Further, error, if any, was later corrected by the State when the prosecutor told

the jury “to follow the law.” See Boatcallie v. State, 121 Tex. Crim. 149, 153, 50 S.W.2d

826 (Tex. Crim. App. 1932) (closing argument that jurors did not need any law and that all

they needed was common sense did not harm the defendant’s rights when the trial court’s

charge instructed the jury on the law to be applied); see also Hawkins v. State 135 S.W.3d

72, 84 (Tex. Crim. App. 2004) (en banc) (ruling that a prosecutor’s self-corrective action




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during jury instruction can, in appropriate circumstances, render an improper comment

harmless).

       We have examined the record and conclude that the State’s argument was not so

egregious as to constitute reversible error. We cannot conclude that the trial court

abused its discretion. Appellant’s second issue is overruled.

                                    IV.    CONCLUSION

       We affirm the trial court’s judgment.



                                          ______________________________
                                          GREGORY T. PERKES
                                          Justice

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

Delivered and filed the
3rd day of July, 2013.




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