Albert Lee Dickson v. State ( 2011 )

Opinion issued June 23, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00683-CR

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Albert Lee Dickson, Appellant

V.

The State of Texas, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case No. 1250794

MEMORANDUM OPINION

A jury convicted appellant Albert Lee Dickson of the third degree felony of attempted burglary of a habitation with intent to commit theft.  See Tex. Penal Code Ann. §§ 15.01, 30.02 (West 2003).  Dickson pleaded true to two enhancements (alleging prior convictions for the felonies of burglary of a habitation and theft), and the jury assessed punishment at 40 years in prison.  See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2010).  In his sole appellate issue, Dickson contends that the trial court abused its discretion by allowing the State to introduce evidence of an unadjudicated theft offense.  Because Dickson’s intent was put at issue by his counsel’s opening statement and cross-examination of State’s witnesses, we conclude that the trial court did not abuse its discretion in admitting evidence of the extraneous theft. Therefore we affirm the conviction.

I. Background

Just after 7:00 a.m. on a Friday morning, a frantic banging on the door and ringing of the doorbell roused Matthew and Christine Rose.  They ran to the front door, looked through the window, and saw a stranger pounding on their front door.  At trial they both identified that man as the defendant, Albert Lee Dickson.  They watched as Dickson stepped back and looked to the left and the right, and then loudly kicked the door.  Later, they saw a footprint on the door where Dickson had kicked it.  Matthew and Christine went to their first-floor bedroom to get dressed, and from there, Matthew heard the metal latch on his back gate being unlatched.  He looked out his bedroom window and saw Dickson in his backyard, walking toward his back door.  Matthew, a former Marine, grabbed a machete, which he described as “the only weapon that I possess.”

A grapefruit-sized rock or piece of cement crashed through the living room window. Matthew testified that he saw Dickson’s hand come through the broken glass and unlatch the right side of the window. Christine testified that she saw either his hand or his head come through the window.  As Dickson tried to unlatch the left side of the window, Matthew struck his hand with the machete.  Despite the defense attorney’s assertions in opening and closing arguments that there was no blood in the house, both Christine and Matthew testified that blood spattered inside the house, on the walls and on a couch. Dickson ran away, but Matthew chased him down the street and eventually apprehended him with help from a neighbor.

Meanwhile, Christine had called the police.  A patrol car was already in the neighborhood because of an earlier report. Harris County Deputy B. Ballard, who responded to both calls testified, “The earlier call was reference to a suspicious vehicle. It was a white Lincoln Navigator that was being driven with no headlights by a black male.”  Deputy Ballard found keys to a Lincoln Navigator in Dickson’s pocket.  While responding to the burglary call, Ballard received another call about a stolen white Lincoln Navigator.  The keys from Dickson’s pocket matched the stolen car.

Before trial on the charge that Dickson attempted burglary of the Roses’ house, the State filed a notice of intent to introduce evidence of extraneous offenses, including evidence pertaining to the alleged theft of the Lincoln Navigator.  The trial court granted Dickson’s motion in limine pertaining to evidence regarding the alleged theft of the Lincoln Navigator.

At trial, Dickson’s attorney argued in his opening statement that this was not a case of burglary but a case of trespassing.

I expect the evidence is going to show you the following: That this case was nothing more than my client breaking a window or trespassing on somebody’s property, that’s it.  The evidence is going to show you that, yeah, he was there.  He was knocking on the door that morning.  The evidence is going to show that my client threw a rock through the window.  There’s no evidence that my client stuck his hand through the window. 

During Deputy Ballard’s testimony, the prosecutor approached the bench in regard to the limine order.  The State wanted to ask Ballard what he found in Dickson’s pockets as a way of linking him to the theft.  After a discussion about whether the defense had placed Dickson’s intent at issue, the court stated simply, “I’m going to allow you to go into it.”  The State then introduced evidence pertaining to the theft of the Lincoln Navigator through the testimony of Ballard, two other deputies, and the owner of the Lincoln Navigator. 

          In his closing argument, Dickson’s counsel urged the jury to find him guilty only of the lesser-included offense of criminal trespass.  The jury found him guilty of attempted burglary with intent to commit theft.  On appeal, Dickson contends that the trial court abused its discretion by allowing the State to introduce evidence regarding the theft of the Lincoln Navigator.

II. Standard of review

We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard.  Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).  A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).  Evidence of extraneous offenses or misconduct is generally not admissible to show the character of the defendant or his actions in conformity therewith.  Tex. R. Evid. 404(b); see Casey, 215 S.W.3d at 879; Swarb v. State, 125 S.W.3d 672, 680–81 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).  “It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .”  Tex. R. Evid. 404(b).  A defense opening statement may open the door to the admission of extraneous-offense evidence to rebut the defensive theory presented in the defense opening statement.  See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). This is particularly so when the defense makes its opening statement immediately after the State’s opening statement, because in that situation “the State may reasonably rely on this defensive opening statement as to what evidence the defense intends to present and rebut this anticipated defensive evidence during its case-in-chief as opposed to waiting until rebuttal.”  Id. at 563 n.7.  The key inquiry is “whether the extraneous-offense evidence has noncharacter-conformity relevance by, for example, rebutting a defensive theory or making less probable defensive evidence that undermines an elemental fact.” Id. at 563 n.8.  Nevertheless, relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Tex. R. Evid. 403; see Casey, 215 S.W.3d at 879; Swarb, 125 S.W.3d at 681.

III. Analysis

Dickson was indicted for attempted burglary of a habitation with intent to commit theft.  A person commits burglary of a habitation “if, without the effective consent of the owner, the person enters a habitation . . . with intent to commit a felony, theft, or an assault.”  Tex. Penal Code Ann. § 30.02(a)(1).  “Where the charge is burglary with intent to commit theft, the offense is complete if the entry is made with the requisite intent, regardless of whether a theft is actually committed.”  Martinez v. State, 304 S.W.3d 642, 658 (Tex. App.—Amarillo 2010, pet. ref’d).  Thus, intent to commit theft was a necessary element of crime for which Dickson was charged. See McGee v. State, 923 S.W.2d 605, 608 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (“Intent, as an essential element of burglary, must be proved by the State beyond a reasonable doubt; it may not be left simply to speculation and surmise.”).

Dickson’s counsel made his opening statement immediately after the State’s opening statement.  In it, he argued that Dickson was merely trespassing and neither attempted nor intended to commit theft or enter the house.  In doing so, he placed Dickson’s intent at issue.  See Bass, 270 S.W.3d at 563.

The State offered the evidence regarding the theft of the Lincoln Navigator to rebut Dickson’s theory that he was merely trespassing and lacked intent to commit burglary.  The theft of the Lincoln Navigator, which involved a burglary to obtain the keys, occurred in the same neighborhood and within hours of the instant offense.  The key found in Dickson’s pocket started the Navigator, which was the subject of the suspicious vehicle report made earlier that morning in the same neighborhood.  The owner of the Navigator testified that his wife ordinarily kept the keys on a table inside the house and had left the door unlocked that night. Thus, it is at least subject to reasonable disagreement whether the testimony pertaining to the theft of the Navigator, specifically the fact that its keys had to be obtained in the course of a burglary, was probative and admissible on the issue of whether Dickson was merely trespassing or intended to commit theft or burglary in the instant case.  See id. at 563 & nn.7 & 8; Linder v. State, 828 S.W.2d 290, 294 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (“Intent may be inferred from the defendant’s conduct and surrounding circumstances.”); Martinez, 304 S.W.3d at 658 (holding that trial court did not err in admitting evidence of earlier burglary in trial for later attempted burglary when earlier burglary was near in time and location and probative of defendant’s intent).

We conclude that the trial court did not abuse its discretion to decide the evidence had relevance apart from character conformity and was therefore admissible.  See Bass, 270 S.W.3d at 563 & nn.7 & 8; Casey, 215 S.W.3d at 879. 

IV. Conclusion

We overrule Dickson’s sole issue, and we affirm the judgment of the trial court.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b).