Rubio, Santiago v. State ( 2004 )

Affirmed and Memorandum Opinion filed December 23, 2004

Affirmed and Memorandum Opinion filed December 23, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00030-CR

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SANTIAGO RUBIO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 964,905

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M E M O R A N D U M   O P I N I O N

Santiago Rubio appeals his jury conviction for burglary of a habitation with intent to commit aggravated robbery.  In two issues, appellant argues the trial court erred in admitting testimony regarding the subsequent murder of a complainant and challenges the legal and factual sufficiency of the evidence identifying him as the perpetrator of the burglary.  We affirm.

I.  Factual and Procedural Background

In the early morning hours of March 18, 2003, complainant Jessica Gonzalez, her husband, Oliver Anilpas, and their daughter were watching television together in a bedroom of their home when two men entered the room.  One of the men wore a ski mask and carried a shotgun. He pointed the gun at Anilpas=s chest and demanded money and jewelry.  His accomplice escorted Gonzalez to the kitchen to search for money.  The two men left the residence without taking any property other than Anilpas=s car keys.  Gonzalez later identified appellant as the man wearing the ski mask based on her observations of his eyes and eyelashes, his build, and from hearing his voice.  Appellant was charged with burglary of a habitation with intent to commit aggravated robbery and was subsequently convicted by a jury.  The trial court assessed punishment at 60 years= confinement and this appeal ensued.

In two issues, appellant claims the trial court erred in admitting irrelevant testimony during trial and that Gonzalez=s identification of him is legally and factually insufficient to support his conviction.  We first address appellant=s sufficiency complaints, and then his challenge to the alleged irrelevant testimony.

II.  Is the Evidence Sufficient to Support the Conviction?

A.        Standards of Review

In a legal sufficiency review, we consider all the evidence in a light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). During our review, we do not reevaluate the weight or credibility of the evidence; our role is to ensure the jury reached its verdict rationally. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).  We affirm the decision if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In conducting a factual sufficiency review, we view the evidence in a neutral light and set aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to support a verdict of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). In our evaluation of the evidence, we must be deferential to the jury=s findings and avoid substituting our judgment for that of the fact finder.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  As the trier of fact, the jury alone judges the credibility of the witnesses and the strength of the evidence.  Herrero v. State, 124 S.W.3d 827, 832 (Tex. App.CHouston [14 Dist.] 2003, no pet.).

B.        Application

The State was required to prove beyond a reasonable doubt that appellant committed the burglary.  Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). A defendant=s identity may be proved through either direct or circumstantial evidence.  Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.CAustin 2000, pet. ref=d). Further, positive identification of a defendant by the victim of a robbery is to be given great weight. Haywood v. State, 507 S.W.2d 756, 758 (Tex. Crim. App. 1974); Jones v. State, 687 S.W.2d 430, 432 (Tex. App.CHouston [14th Dist.] 1985, no pet.); see also Davis v. State, 831 S.W.2d 839, 842 (Tex. App.CDallas 1992, pet. ref=d) (upholding conviction based on victim=s positive identification, despite defendant=s offer of five alibi witnesses that testified he was in another state when the crime occurred).  A victim=s in-court identification is sufficient to establish the identity of the perpetrator of a robbery.  Jones, 687 S.W.2d at 432.   

At trial, Gonzalez stated that she had known appellant for three years prior to the burglary because he dated Anilpas=s sister.  Gonzalez testified she became familiar with appellant=s voice and build because he had attended family gatherings.  She stated that when the burglars confronted her and Anilpas, she realized one of them was appellant, despite the ski mask, because she instantly recognized his eyes and voice.  She also stated that she was 100 percent sure of appellant=s identity because in addition to his eyes, eyelashes, and voice, she recognized his build.  In court, Gonzalez unequivocally identified appellant as one of the burglars. 

Appellant attacks this identification evidence as insufficient to support his conviction because it is Aweak and unreliable.@ Appellant cites to Webb v. State and contends we must evaluate the reliability of Gonzalez=s testimony under Webb=s totality-of-the-circumstances test.^[1]  760 S.W.2d 263, 269 (Tex. Crim. App. 1988).  Appellant=s reliance on Webb, however, is misplaced because Webb=s totality review is applicable only when the in-court identification is allegedly tainted by an overly suggestive pretrial identification procedure.  Id.; see also Loserth v. State, 963 S.W.2d 770, 771B72 (Tex. Crim. App. 1998); McAllister v. State, 28 S.W.3d 72, 77 (Tex. AppCTexarkana 2000, no pet.) (stating the totality test from Webb is applicable to determine whether an impermissibly suggestive pretrial identification created a substantial likelihood of misidentification). As no such claim is made here, we do not review Gonzalez=s testimony for reliability under Webb. Rather, we review Gonzalez=s identification according to the standards set out above, bearing in mind that the jury acts as the ultimate arbiter of witness credibility.  See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).

As noted, Gonzalez unequivocally identified appellant as the perpetrator of the burglary based on his eyes and eyelashes, his voice, and build.  In addition, Gonzalez testified she was familiar with appellant because she had known him for three years prior to the burglary, and instantly recognized his voice when he entered her home. Appellant=s argumentCthat the identification is unreliable because the burglar wore a ski mask and Gonzalez=s degree of attention was insufficientCgoes to Gonzalez=s credibility and is judged by the jury.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.1999) (stating the jury alone determines the credibility of the witnesses and the strength of the evidence).

Viewing Gonzalez=s testimony in the light most favorable to the verdict, we hold it is legally sufficient to support appellant=s conviction.  King, 29 S.W.3d at 562.  Furthermore, when viewed impartially, we conclude Gonzalez=s identification, taken alone, is not so weak that the State was unable to meet its burden of proof beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484B85.  Thus, the evidence is both legally and factually sufficient to sustain appellant=s conviction.  Accordingly, we overrule appellant=s second issue.

III.  Did the Trial Court Err in Admitting Evidence of Anilpas=s Murder?

In his remaining issue, appellant contends the trial court erred in admitting a portion of Gonzalez=s testimony in which she stated that Anilpas was unavailable to testify at trial because he had been murdered sometime after the burglary occurred.  During Gonzalez=s testimony, the following exchange took place:

Q (by the prosecutor):  Now, your husband, Oliver, he=s not here today, is he?

A (by Gonzalez):  No, he=s not.

Q:  Would you tell the jury why he=s not here?

A:  He=s dead.

Q:  How did he die?

A:  They murdered him.

Q:  NowC

By defense counsel:  I=m sorry, I didn=t understand.

By the prosecutor:  They murdered him.

Q (by the prosecutor):  So your husband was murdered?

A:  Yes.

Q:  When?

By defense counsel:  I object to the relevance of anything further about what happened to her husband.

By the Court:  I=ll let her establish a time frame.

Q (by the prosecutor):  About when was Oliver murdered?

A:  July the 2nd.

Appellant argues that the testimony implicates appellant as the murderer and thus, should not have been admitted because it is irrelevant to appellant=s guilt for the burglary.  In response, the State argues that appellant failed to preserve this complaint with a timely, specific objection to the admission of the testimony. We agree with the State.

To preserve error regarding the improper admission of evidence, the appellant must make a timely and specific objection to the complained-of evidence at trial.  Tex. R. App. P.  33.1(a); Ramirez v. State, 74 S.W.3d 152, 154 (Tex. App.CAmarillo 2002, pet. ref=d).  Failure to do so waives any error in the admission of the evidence. Boyington v. State, 787 S.W.2d 469, 470B71 (Tex. App.CHouston [14th Dist.] 1990, pet. ref=d).  To be timely, a party must object either (1) before the evidence is admitted, if possible, or (2) if not possible to object before the evidence is admitted, as soon as the objectionable nature of the evidence becomes apparent.  Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  An appellant=s objection is untimely, and error is waived, if he fails to object until after an objectionable question has been asked and answered and he can show no legitimate reason to justify the delay.  Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).   

Although appellant argues that the testimony regarding the murder was irrelevant, he did not lodge a timely objection to the relevancy of the fact of the murder itself at trial.  Rather than objecting as soon as the subject of the murder came up or immediately after Gonzalez answered the question about the murder, appellant objected after a subsequent questioned was asked and answered.  Because the objectionable nature of the testimony was apparent as soon as Gonzalez answered, appellant must have objected at that time in order to be timely.  See Aguilar v. State, 26 S.W.3d 901, 905B06 (Tex. Crim. App. 2000).  Appellant=s objection came too late and, thus, preserved nothing for our review.  Dinkins, 894 S.W.2d at 355; see also Leach v. State, 770 S.W.2d 903, 907 (Tex. App.CCorpus Christi 1989, pet. ref=d) (noting where a question is asked and answered prior to an objection and no motion to withdraw testimony from the jury is made, no error is presented for review).  Accordingly, appellant=s remaining issue is overruled.  See Tex. R. App. P. 33.1(a).

We affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 23, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The Webb court adopted the following list of nonexclusive factors A[t]o be weighed against the corrupting effect of any suggestive identification procedure@ when assessing the reliability of a witness=s identification under the totality of the circumstances: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness= degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation.  Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988).