                           NUMBER 13-13-00407-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

AMADO PEREZ,                                                           Appellant,


                                         v.


THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 427th District Court
                        of Travis County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      A jury found Amado Perez guilty of burglary of a habitation, a second-degree

felony. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011) (defining burglary of a

habitation). After Perez pled true to an enhancement allegation based on a previous

conviction for burglary of a habitation, the jury assessed a prison sentence of forty
years. See id. § 12.42(b) (West 2011) (stating that “if it is shown on the trial of a felony

of the second degree that the defendant has previously been finally convicted of a

felony other than a state jail felony . . . , on conviction the defendant shall be punished

for a felony of the first degree”); id. § 12.32 (West 2011) (“An individual adjudged guilty

of a felony of the first degree shall be punished by imprisonment in the Texas

Department of Criminal Justice for life or for any term of not more than 99 years or less

than 5 years.”). Perez now appeals by two issues in which he contends the following:

(1) the evidence is insufficient to support the jury’s verdict of guilt; and (2) the trial court

erred in admitting certain testimony by Detective Gina Gaddy of the Austin Police

Department that tended to connect Perez to a vehicle that was parked in the driveway

of the house where the alleged offense occurred.                  Because we conclude that the

evidence was sufficient to support the jury’s verdict and because we conclude that the

error, if any, in the trial court’s admission of Detective Gaddy’s testimony was not

preserved for our review, see TEX. R. APP. P. 33.1(a)(1), we overrule Perez’s two issues

and affirm the judgment of the trial court.

                                          I. BACKGROUND 1

        At trial, Officer Kyle Sargent of the Austin Police Department testified that on

August 21, 2012, he was on patrol in southwest Austin when “a call came out as a

burglary urgent hotshot,” which is “a way for dispatch to notify . . . [police officers] that . .

. [they] need to run lights and sirens, which is also Code 3.” Officer Sargent then

testified in relevant part as follows:



        1
          This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to
a docket equalization order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).

                                                   2
       I arrived on Edgeware and parked I believe it was the front of 1912, which
       is just west of 1910. I parked on the north side of Edgeware. And as I
       exited my patrol car I walked toward the front yard of 1910. I saw a white
       female standing in front of 1912 who stated the people that lived in 1910
       weren’t home. And I also noticed a tan older model Chevy Blazer in the
       driveway of 1910 Edgeware. . . .

       I walked along the curb and about right here I saw the front door. There is
       a screen glass door in front of the main door that goes into the house.
       Both doors appeared to be closed. As I was checking the area I saw the
       front door open. As the front door opened I saw a Hispanic male just
       inside the doorway. He was wearing a red shirt, kind of loose fitting.
       When he saw me, he said, oh, shit, and shut the door and went back
       inside the house. . . .

       So when I saw somebody was inside the residence, I asked for more
       officers to arrive on Edgeware to help me out. And then I also sent
       officers to Glen Allen, which is the street north of Edgeware, in case
       whoever was in the house went through the backyard. . . .

       A little bit of time went by, I don’t know, maybe a minute, and then I was
       still in the front yard approximately 20 or 30 feet away from the front door.
       I heard what sounded like a fence breaking in the backyard so I advised
       dispatch and other officers arriving on scene that the suspects or whoever
       was in the house were possibly going through the backyard. . . .

       Officer Sargent then testified that another officer detained Perez and brought him

to 1910 Edgeware Drive, where Officer Sargent was able to identify Perez as the

person he saw standing in the doorway. At trial, Officer Sargent also identified Perez in

the courtroom as the person he saw standing in the doorway. He testified that he was

“[o]ne hundred percent certain” that Perez was the individual he saw standing in the

doorway.

                             II. SUFFICIENCY OF THE EVIDENCE

       In his first issue, Perez contends that the evidence is insufficient to establish his

identity as the individual who committed the offense of burglary of a habitation.




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A. Standard of Review

       When we review the sufficiency of the evidence to support a verdict under the

sufficiency standard set out in Jackson v. Virginia, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson

v. Virginia, 443 U.S. 307 (1979)). “This standard accounts for the fact[-]finder’s duty to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Id. (quotations omitted). “[W]e determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict.” Id. (quotations omitted). “Our review of all of the evidence includes evidence

that was properly and improperly admitted.” Id. “When the record supports conflicting

inferences, we presume that the fact[-]finder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.” Id. “Direct and circumstantial

evidence are treated equally.” Id. “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Id.

B. Applicable Law

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997). “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



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proof or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quotations omitted).

       In relevant part, the Texas Penal Code defines the offense of burglary of a

habitation as follows: “A person commits an offense if, without the effective consent of

the owner, the person . . . enters a habitation . . . not then open to the public, with intent

to commit a felony, theft, or an assault . . . .” See TEX. PENAL CODE ANN. § 30.02(a)(1).

C. Discussion

       Perez contends that the evidence is insufficient to establish his identity as the

individual who committed the offense of burglary of a habitation because Officer

Sargent was twenty to thirty feet away and only saw the suspect for about two seconds

before the individual shut the front door to the house.        However, the finder of fact

accepted Officer Sargent’s testimony that he was “[o]ne hundred percent certain” that

Perez was the individual he saw standing in the doorway. See Garcia v. State, 563

S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (“The prosecutrix’ identification of

appellant as the man who raped her is sufficient.”). We are reminded of this Court’s

proper role in conducting a sufficiency review:

       Under the Jackson standard, the reviewing court is not to position itself as
       a thirteenth juror in assessing the evidence. Rather, it is to position itself
       as a final, due process safeguard ensuring only the rationality of the
       factfinder. The court is never to make its own myopic determination of
       guilt from reading the cold record. It is not the reviewing court's duty to
       disregard, realign or weigh evidence. This the factfinder has already
       done. The factfinder, best positioned to consider all the evidence
       firsthand, viewing the valuable and significant demeanor and expression
       of the witnesses, has reached a verdict beyond a reasonable doubt.




                                              5
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In sum, the evidence

was sufficient because, on this record, a rational trier of fact could have found beyond a

reasonable doubt that Perez was the individual who committed the burglary of a

habitation. See TEX. PENAL CODE ANN. § 30.02(a)(1); Jackson, 443 U.S. at 324 (holding

that a defendant “is entitled to . . . relief if it is found that upon the record evidence

adduced at the trial no rational trier of fact could have found proof of guilt beyond a

reasonable doubt”). Therefore, his first issue is overruled.

                                        III. EVIDENTIARY ERROR

        In his second issue, Perez complains about the admission into evidence of the

following testimony by Detective Gina Gaddy of the Austin Police Department that

tended to connect Perez to a vehicle that was parked in the driveway of the house

where the alleged offense occurred:

        Q.      Was the Chevy Blazer ever reported stolen?

        A.      No, ma’am.

        Q.      Did you try to process any prints in the truck?

        A.      Inside the truck, no, ma’am.

        Q.      Why not?

        A.      Because the person that was arrested had normal control of that
                vehicle so we didn’t figure it was beneficial for us to process it.

        On appeal, Perez complains about the testimony by Detective Gaddy that tended

to connect him to the vehicle and thus to the scene of the crime; however, it is clear that

Perez did not object to the testimony when it was offered on direct examination. 2 See


        2
         Just prior to the testimony, the trial court held a hearing outside the presence of the jury, during
which Perez objected to certain other testimony regarding statements made by the owner of the vehicle
(who was not Perez) as being hearsay and on the grounds that he would not have an opportunity to

                                                     6
TEX. R. APP. P. 33.1(a)(1). We also note that on cross-examination, Perez elicited the

following testimony from Detective Gaddy:

        Q.      Now, in response to some of the questions from the prosecutor you
                said that the vehicle was not worked on or dusted for prints; is that
                correct?

        A.      That is correct.

        Q.      And that is because you had information that at sometime in the
                past Amado Perez had been in that vehicle?

        A.      That’s correct.

        Q.      Is it also correct that you do not know that he was in that vehicle on
                August the 21st of 2012?

        A.      I do not know that for sure.

        “It is the general rule that when the defendant offers the same evidence to which

he earlier objected, he is not in a position to complain on appeal.” Maynard v. State,

685 S.W.2d 60, 65 (Tex. Crim. App. 1985).                 “This principle is better known as the

doctrine of curative admissibility.” Id. “There exists, however, a corollary to this rule[,

which is] . . . that the harmful effect of improperly admitted evidence is not cured by the

fact that the defendant sought to meet, destroy, or explain it by the introduction of

rebutting evidence.” Id.         “Such testimony does not act as a waiver of the right to

challenge the admissibility of the evidence originally admitted.” Id.

        In the case at bar, it could be argued that Perez was merely seeking “to meet,

destroy, or explain” the testimony of Detective Gaddy by establishing that she could not

be sure that he had been in the vehicle on the date of the offense. Id. However, we



cross-examine the declarant who was unavailable to testify at trial. The trial court sustained the hearsay
objection, but it did not rule on the other objection. When the jury was brought back into the courtroom,
the State resumed its direct examination of Detective Gaddy and elicited the foregoing testimony quoted
above, which is at issue in this appeal.

                                                    7
need not decide that issue, see TEX. R. APP. P. 47.1, because we agree with the State

that Perez did not preserve any error in the admission of the original testimony elicited

on direct examination because he failed to make a timely objection when that evidence

was offered. See TEX. R. APP. P. 33.1(a)(1); TEX. R. EVID. 103(a)(1) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right of

the party is affected, and . . . [i]n case the ruling is one admitting evidence, a timely

objection or motion to strike appears of record, stating the specific ground of objection, if

the specific ground was not apparent from the context . . . .”). Accordingly, his second

issue is overruled.

                                     IV. CONCLUSION

       The judgment of the trial court is affirmed.



                                                  NORA L. LONGORIA
                                                  Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
30th day of December, 2013.




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