### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00224- CR

Mario Alber t Valadez, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2010 -41 7, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Mario Albert Valade z of the offe nse of burg lary of

a habitation. See Tex. Penal Code Ann. § 30.02 (West 2011). Punishm ent, enhanc ed by eig ht prior felony convictions, was assessed at life imprisonment. I n two points of error , Valade z asse rts that the district court abused its discretion in excluding hear say testimony and that t h e district court

err ed in deny ing his reque st for an instruction on the lesser- included offe nse of theft. We will aff irm the judg ment.

BACK GR OUND

The jury hear d evidenc e that on J une 11, 2010, the home of Tony and L eticia Valade z

was burg larized. Their adult son, Tony J r., was alon e i n the house when the burg lary alleg edly 1

Severa l witnesses in the case are rela ted to Valade z and share h i s s u rn ame. To avoid 1 confusion, we will refe r to these witnesse s using their first names.occur

red, and he was the State’s primary witness during trial. Tony J r. testified that he was aslee p in the house that morning when he hear d the doorbell ring

. Tony J r. re m ained in bed. Howeve r, “a b o u t three to five minutes” later, when he g ot up to use the bathroom, he hear d someone in h i s p ar en ts’ bedroom, walked slowly to their room, and looked in the doorwa y . I nside the b ed ro o m , Tony J r. saw V alade z, his uncle and Tony ’s brother, looking throug h the closet. Tony J r. testified that Valade z “had a ring and a watch and other stuff in his hand.” Acc ording to T ony J r., Va ladez saw him , attempted to explain to Tony J r. t hat he was a drug addict and ne eded “ help,” and asked him if he was g oing to tel l his pare nts what he had seen. Tony J r. told Valade z that if he “put

ever y thing back,” he would not tell his pare nts. Valade z then proce eded to “ put some stuff back,” continued asking Tony

J r. not to say

“any thing . . . to any one,” a

nd eventua lly

left the house. Tony J r. further recounted that while he was out ea ting dinner with his friends that night, he rec eived a phone call from his fathe r, who inquired if any of his friends had been inside the house. Tony J r. denied that any one had been inside. When Tony J r. returne d to the house later that night, police office rs wer e there

. When Tony J r. asked his fathe r what had happene d, his fathe r told him that his wedding band and his watch wer e missing. After the police left, Tony J r. told his fathe r that Valade z had been inside the house. His fathe r then called the police, office rs re t u rned to the house, and they

took a statement fr om Tony J r. Tony J r. also testified that he did not let his uncle into the house that day , that he did not g ive his uncle consent to come into the house, and that he did not give him permission to t ake the watch or the wedding band. On cr o s s -e x amination, Tony J r. acknow ledg ed that he did not know how Valade z had enter ed the house and that he had observe d no signs of forc ed entry

. The rec ord ref lects that the

2house has three exterior doors—the front door, a side door into the kitchen, and a back door enter ing

into the master bedroom. Tony J r. acknow ledg ed that his pare nts usually lock the three exterior doors into the house when they leave , but he did not know whether the doors wer e locked that day

. Additionally , Tony J r. admitted that when he had been interviewe d by police, he had told them that the incident had occur

red at approxim at el y 2 : 0 0 p.m., and that the trial was the first time he had claimed the inc ident had occ urre d in the morning

.

Tony S r. testified that on the day of the alleg ed burg lary , he had left his house at approximately 7:45 a.m. and returne d at approximately 3:00 p.m. or 4:00 p.m. that afte rnoon. When he returned, he noticed that the ba ck d o o r t o the m aster bedroom, which he testi fied had not been used in seven to e ight y ear s, was open and that a small J ohn Dee re trac tor inside the bedroom that 2 had alway s been “bac ked up to that door” had been “pushed forwa rd

. . . three fee t from the door.” 3 Tony shut the door, “we nt on with [ his] business,” and le ft the house. When Tony returne d to the house later that afte rnoon, he noticed that his wedding band and his watch, both of which he usually kept on his nightstand, wer e missing. Tony also observe d that various piece s of jewelr y belong ing
to his wife wer e on his nightstand instead of hers, which he found to be “out of the ordinary .” Tony

as k ed his wife why her jewelry was on his nightstand, and she di d not know. At that poin t , T o n y called the police. When the police arr ived, Tony also noticed a “fr esh footprint” near the back door and pointed it out to the office rs. The office rs took photog raphs of the bedroom, the door, and the

Howeve r, on cross-e x amination, Tony admitted that he had repor ted to the police that the 2 door “ope ns from time to time when the house se ttles.” The rec ord is unclea

r as to the exact siz e of the trac tor. Howeve r, in response to a question 3 as to how big the trac tor was, Tony J r. sug g ested that it was a toy , testify ing that it was “not too big” and wa s “for

a child” or

“for a kid.” 3footprint, and copies of the photogr aphs wer e admitted into evidenc e. Tony testified that he did not

allow his brother inside his house that day , that he did not g ive him consent to enter the house, and that he did not g ive him permission to take his belong ings.

Tony ’s wife, L eticia, testified that afte r her husband had told he r that his watch and wedding band we re missing , she bega n to look around their be droom and notice d that some items

wer e out of place and that her dresse r draw ers and j ew elry box es had been opened and “see med like they had been g one throug h.” L eticia then rec ounted how she and her husband had repor ted the incident t o the pol ice an d h ad o b t ained information from their son about who had been i nside the house. L eticia further testified that the following morning , she had g one to a pawn shop to look for the missing items. There , L eticia lear ned that the items had in fac t been pawne d at the store’s other 4 location. L eticia and Tony went to that location and rec overe d their proper ty

. L eticia also testified 5 that she did not allow Valade z to come into he r house on the day in question, that she did not give him consent to come into her home that day , and that s h e d i d n ot g ive hi m permission to take her husband’s wa tch or we dding ba nd. One o f t h e wi tnesses for the defe nse was Detec tive Edwar d Wahrmund of the New Br aunfe ls Police Depa rtment, who had investiga ted the case . Def ense counsel first attempted
to elicit testimony from Wahrmund re gar d i n g statements alleg edly made by Valade z during his interview with police

. I n these statements, which we explain more fully below, Valade z admits to

On cross-e x amination, L eticia testified that she had called Valade z the previous night and 4 that he had told her

wher e he ha d taken the items. Carolina Cheatham, an employ ee of the pawn shop at the time, testified that she had boug ht 5 the items in question and identified Va ladez as the man w ho had sold them to her. 4participating in a drug transac tion with Tony J r. and claims that the stolen items wer e g iven to

him by Tony J r. i n exchang e for marihuana

. The S t at e o b j ec t ed to this testimony as i nadmissible hear say , while the defe nse arg ued that the testimony was admissible as a statement ag ainst interest. Following a hear ing outside the prese nce of the jury , the district court sustained the State’s objection.

When the jury returne d, defe nse counsel proce eded to question Wahrmund on other
matters rela ted to the investiga tion. Wahrmund testified that footprints wer e found leading into but
not out of the house throug h the master bedroom. Fr om this evidenc e, Wahrmund surmised that the burg lar g ot out of the house “proba bly throug h another entra

nce or exit .” Wahrmund also testified that during the investig ation, he “did not note a ny signs of forc ed entr

y ” into the house. Offic er Michae l Smit h of the New Br aunfe ls Police Depa rtment also investiga ted the burg lary and testified for the defe nse. Smit h testified that he had conclude d during the investiga tion that the person who had committed the burg lary must have been someone who was familiar with the house. He came to this conclusion beca use “whoe ver came in was very meticulous as to wher e they 6 looked. They pulled out items, set them aside, and did not take all of the valuables they saw; onl y specific items.” Smit h also testified that there wer e no sig ns of forc ed entr y into the house. During the char g e confe renc e, the defe nse reque sted a jury instruction on the lesserincluded offe nse of theft, whi ch the district court denied. Following its delibera tions, the jury found Valade z g uilty as char g ed and subsequently assessed punishment a t life imprisonment. The district court sentenc ed Va ladez in acc ordanc e with the jury ’s ver dict. This appea l followed.

One of the defe nse’s theories during trial was that Valade z had not visited the house often 6 and thus was unf

amiliar with wher e valua

ble items were kept in the house. 5ANALYSIS

Hearsay I n his first point of err or, Valade z asser ts that the district court abused its discretion in excluding his statements to police regard i ng the alleg ed drug transac tion betwee n himself and Tony J r. Ac cording to Valade z, the s tatements were ag ainst his interest and we re thus admissible under an exception to the hear say rul e. See Tex. R. Evid. 803(24). The State responds that the exception d o es n o t apply in this case beca use the statements Valade z alleg edly made wer e not ag ainst his interest but were instead self- serving

.

W e revie w a trial court’s decision to admit or exclude evidenc e fo r an ab u s e of discretion. Ramos v. State , 245 S

. W

. 3 d 410, 417-18 (Tex. Crim. App. 2008). A trial court ab u ses its discretion only when its decision “is so clea rly wrong as to lie outside t h at z o n e within which rea sonable persons might disag ree .” McD onald v. State , 179 S.W .3d 5 7 1 , 5 76 (Tex. Crim. App. 2005) (citing Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1991) (op. on re h’g )). Hea

rsay is a statement, other than one made by the decla rant testify

ing at the trial or hear ing, offe red in evidenc e to prove the truth of the matter asser ted. Tex. R. Evid. 801(d). Hea rsay is inadmissible unless it fits into an exception provided by a statute or the rules of evidenc e. Tex. R. Evid. 802. One such exception pr ovided by the rules of evidenc e is a “stateme nt a g ainst interest,” define d as,

A statement which was at the time o f i t s m ak ing so far contra ry to the decla

rant’s pecunia ry or proprieta

ry interest, or so far tended to subject the decla rant to civil or criminal liability , or to rende r invalid a claim by the decla rant ag ainst another , or 6to m ak e the decla rant an object of hatre d, ridicule, or disgr ace , that a rea sonable p erson in decla

rant’s positi on would not have made the statement unl ess believing it to be true.

Tex. R. Evid. 803(24). Moreove r, “[i] n criminal case s, a statement tending to expose the decla rant t o criminal liability is not admissible unless corr oborating circ umstances clea rly ind i ca t e t h e trustworthiness of the statement.” Id

. Additionally , it has long been the rule in T ex as t h at if the
statement is made by the defe ndant, but the s tatement is self-se rving , i.e., it tends to absolve the defe ndant of responsibility for the crime char g ed, the statement is inadmissible. See W ood v. State , 1 8 S

. W

. 3d 642, 651 (Tex. Crim. App. 2000); Hafdahl v. Stat e , 805 S.W .2d 396, 402 (Tex. C ri m . App. 1990); W

omble v. State , 61 8 S.W .2d 59, 62 (Tex. Crim. App. 1981); Hernande z v. State , 171 S.W .3d 347, 356 (Tex. App.—Houston [14t h Dist.] 2005, pet. ref ’d); Davis v. State , 970 S.W .2d 758, 760-61 (Tex. App.—Austin 1998, pet. ref ’d); see also Langford v. State , No. 03-08-00456- CR, 2010 Tex. App. L EXI S 56 7 , at * 1 2 -1 3 (Tex. App.—Austin J an. 27, 2010, no pet.) (mem. op., not desig nated for publication) (explaining that statements by defe ndant are t o b e excluded when “[t] he inculpatory signific ance of the statements [i s] minor in compar is o n t o i t s signific ance as means of a

bsolving [the defe ndant] of the crime f or which he was a ccuse d”). During his offe r of proof, Valade z elicited the following testimony from Wahrmund:
Q. Did y ou investiga te the case of the burg lary of a habitation of Mario Valade z? A. I did. Q. Okay . And during that time did y ou question Mario about the c ase? A. I did have a

n occa sion to meet with him and speak with him.

7Q. Okay . Did y ou ask him his side of the story ?

A. I did. Q. Did he g ive y ou an explanation? A. He e x plained that he had me t with his nephew, who I called T ony

J unior in my repor t, and a tra

nsaction wa s made be tween the m.

. . . . Q. What did that mean to y ou? A. After explaining that he had pawne d the jewelr y and explaining—or I asked what happene d or how that came about. He explained that h e had made a transac tion with Tony J unior. I followed up with questions to cla ri fy what kind of transa ction he wa s ref err ing to. Q. How did y ou clar ify ? A. I asked him in just lay terms, street terms, I asked him if he was talking about a white tra

nsaction or a

g ree n transac tion. Q. What does that mean? A. I was ref

err ing t o whi te being methamphetamine or heroin, or g ree n being marihuana

. Q. And how did he r espond to y ou? A. He a dmitted—or he told me that it was a g ree n transac tion. Q. So he admitted to a g ree n transac tion, which would be selling marihuana ? A. Correc t. Q. Okay . And he a dmitted that he sold that marihuana to Tony J unior. I s that corr ect? A. That’s c orre ct. Q. And he sa id that that was at Tony J unior’s re quest?

8A. Yes.

Q. And did he say

that Tony

then g ave him the items to pawn f or pay ment? A. I t was my underst an d i n g t h at h e rec eived those items as pay ment for the marihuana

.
The district court would not have abused its discretion in finding th at al t h o ug h
t h e above statements tended to subject Valade z to prosec ution for a marihuana transac ti o n , t h e statements also t ended to a bsolve him of the burg lary offe nse for

which he was charg ed. Valade z had told Wahrmund that the stolen items wer e g iven to him by Tony J r. as pay ment for marihuana

. I n other words, Valade z was claiming that rathe r than being the perpet ra t o r of a burg lary of his b rother’ s home, he was mere ly at the house selling marihuana to his consenting , adult nephew

. Whil e selling marihuana is cer tai n l y a criminal offe nse, it would not be outside the zone of

rea sonable disag ree ment for the district court to co n clude that the inculpatory signific ance of adm i t t i n g t o a drug offe nse was minor in compar ison to its signific ance as a means of absolving Valade z of t he burgla

ry offe nse for

which he w as cha

rg ed. Ac cording ly , we cannot conclude t hat the district c ourt abused its discretion in finding Valade z’s statements to be more self-se rving than inculpatory and thus inadmissible. See W ood , 18 S.W .3d at 6 5 1 ; Hernande z , 171 S.W .3d at 356; Davis , 970 S.W .2d at 761.

We overrule Valade z’s first point of error

.

Lesser- includ ed off

ense I n his second point of error , Va ladez asser ts that the di strict court erre d in deny ing his reque sted instruction for the lesser- included offense of theft. The State responds that Valade z 9was n ot entitled to such an instruction beca use there was no evidenc e prese nted that Valade z, if g uilty , was g uilty

only of the off ense of theft. An offe nse is a lesser included offe nse if it is established by proof of the same or less than all the fac ts require d to establish the commission of the offe nse char g ed. Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006). The deter mination of whether a lesser- included-of fense instruction reque sted by a defe ndant must be g iven require s a two-step analy sis. Rice v. State , 333 S.W .3d 140, 144 (Tex. Crim. App. 2011) (citing Hall v. State , 225 S.W .3d 524, 535-36 (Tex. Crim. App. 2007)). T h e fi rst step of the analy sis asks whether the lesser- included offe nse is included withi n t h e proof nece ssary to establish the offe nse char g ed. Id

. The second step is to deter mine if there is some evidenc e in the record which would permit a jury to rationally find that, if the defendant is g uilty , he is g uilty

only of the lesse r-include d offe nse. Id . at 145. The State do es n o t d i s p ute that theft is included within the proof nece ssary to establish the char g ed offe nse. Assuming withou t d ec i d ing that the first prong of the test was satisfied in this case , Valade z would be entitled to an instruction o n t h at o ff ense only “if there is

s o m e ev i d ence in the rec ord which would permit a jury to rationally find that, if the defe ndant is g uilty , he is g uilty only of the lesser- included offe nse.” Id

. at 145 (citing Guz ma n v. S t a t e , 188 S.W .3d 185, 188-89 (Tex. Crim. App. 2006); Hall , 2 2 5 S

. W

. 3 d at 536). “I n this step of the analy sis, any

thing more than a scintilla of evidenc e may be sufficie nt to entitle a defe ndant to a lesser char g e.” Hall , 225 S.W .3d at 536. “I n other words, the evidenc e must establish the lesser- included offe nse as ‘a valid, rational alterna tive to the char g ed offe nse.’” Id

. (quoting Forest v. State , 989 S.W .2d 365, 367 (Tex. Crim. App. 1999)).

10I n deciding whether the issue of a lesser- included offe nse is raised, we look to all

the evidenc e prese nted at trial. Havard v. State , 800 S.W .2d 195, 216 (Tex. Crim. App. 1989). The

cre dibilit y of the e vidence and whe ther it is controver ted or c onflicts with other evidence may not be considered. Id . I t is not enough tha t the jury may disbelieve crucial evidence perta ining to the g rea ter offe nse. Skinner v. State , 956 S

. W

. 2 d 5 3 2 , 543 (Tex. Crim. App. 1997). Rather, there
must be some evidenc e direc tly g erma ne to a lesser- included offe nse for the fac t-finder to consider befor e the instruction is war rante d. Id

. A lesser- included offe nse may be raised if evidenc e either aff irmatively

ref utes or neg ates an element e stablishing the g rea ter off ense, or the evidenc e on the issue is subject to two differ ent i nterpre tations, and one of t he int erpr etations neg ates or rebuts an element of

the g rea ter. Schweinle v . State , 915 S.W .2d 17, 19 (Tex. Crim. App. 1996). I n this case , the question is whether there was some evidenc e prese nted at trial that would have permitted a rational jury to acquit Valade z of burg lary of a habitation and find him g uilty only of theft. As char g ed, a person commits the offe nse of burg lary of a habitation if he enter s

a habi t ati on without the eff ective consent of the owner with the intent to commit a theft or if he commits or attempts to commit a theft. See Tex. Penal Code Ann. § 30.02(a) (1), (3). There fore , in order to a cquit Valade z of burg lary but f ind him guilty

only of theft, ther e must be evide nce in the

rec ord that Valade z either did not enter the home at all or, if he did, that he did so with the owner s’ eff ective c onsent.

No such evidenc e was prese nted at t ri al

. Tony J r. testified that he found Valade z inside the home, and this testimony was undisputed. As for the issue of consent, the owner s of the home, Tony and L eticia, both testified t hat t hey did not allow Valadez into their hom e that day or

11g ive him consent to enter the house. Their son, Tony J r., simil arly testified. The evidenc e showing 7 Valade z’s lack of c onsent to enter the house wa s also undisputed.

Valade z’s pr imary arg ument for why he was entitled to a

n instruction of the lesserincluded offe nse of theft is that there wer e “cr edibility ” issues with the State’s witnesses, particula rly Tony J r. claiming for the first time d u ri n g t ri al that the burg lary occur red in the morning rathe r t h an i n the afte rnoon. Ag ain, howeve r, “it is not enoug h that the jury may disbelieve cr u ci al evidenc e perta ining to the g rea ter offe nse; there must be some evidenc e direc tly g erma ne to a lesser included off

ense f or the fa ctfinder

to consider befor e an instruction on a lesser inc luded offe nse is

war rante d.” Bignall v. State , 887 S.W .2d 21, 24 (Tex. Crim. App. 1994). No su ch ev idence was prese nted in this case . See also R o b i n son v. State , No. 07-08-00157- CR, 2010 Tex. App. L EXI S 2446, at *8-9 (Tex. App.—Amar illo Apr. 6, 2010, pet. ref ’d) (mem. o p., not desig nated for publication) (explaining that more is require d to entitle defe ndant to instruction on lesser- included offe nse of theft than “simply

. . . pointing out rea sons the jury could have d i s b elieved the State’s evidenc e [that the defe ndant] commit ted the burg lary ”).

Valade z also arg ues that evide nce show ing tha t there w ere no signs of forc ed entr

y into the home supports a lesser- included-of fense instruction. Howeve r, the lack of forc ed entry does not neg ate any element o f b u rgl ar y as that offe nse is curr ently define d. See Clark v. State , 667 S.W .2d 906, 908 (Tex. App.—Dallas 1 9 8 4 , p et

. ref ’d); see also Tex. Penal Code Ann.

We also note that even if the district court had admitted Valade z’s statements tending 7 to show that Tony J r. had al l o we d Va l adez to enter the home for the purpose of eng ag ing in a drug transac tion, the statements would not be evidenc e that Tony J r. was leg ally authorized to g ive consent to enter the home on behalf of his pare nts. See Gonzales v. State , 931 S.W .2d 574, 575-76 (Tex. Crim. App. 1996). 12§ 30.02(b) (def ining “ente r” for purposes of burg lary statute; definition does not incl u d e u s e of forc e); Griffin v. State , 815 S.W .2d 576, 578 (Tex. Crim. App. 1991) (“Sec tion 30.02 abolished the distinction betwee n day

time and nighttime burg lary and abolished any require ment for a ‘bre aking ,’ requiring only an entry with the requisite intent.”). Moreove r, t here was ev i d en ce of forced entry in this case . The evidence showed that Va l ad ez m ay have entere d the hous e by pushing open the back door into the master bedroom and displacing the small trac tor that had been place d ag ainst the inside of t h e door. But even if no forc e was require d to enter the home and the doors had been unlocked prior to Valade z’s entry , there was no evidenc e p re sented that Valade z had the owner s’ eff ective co n s en t to enter the home. See Clark , 667 S.W .2d at 908 (“[A]n entry throug h an open door can constitute a burg lary

. . . if the building is not open to the public.”); see also Rogers v. State , No. B14- 91-00041-CR, 1992 Tex. App. L EXI S 2215, at *5 (Tex. App.—H o u s ton [14t h Dist.] Aug

. 13, 1992, no pet.) (not desig nated for p u blication) (“That the complainant left his door unlocked is not materia l, since entry throug h an open door constitutes burg lary , if done without the eff ective c onsent of the owne r.”)

.

Finally , Valade z asser

ts that a lesser- included-of fense instruction was war rante d beca use he was “looking at a life sentenc e” if convicted of the offe nse of burg lary of a habitation. 8 See Grey v. State , 298 S.W .3d 644, 647 (Tex. Crim. App. 2009) (ca se involving reque st by State for lesser- included offe nse instruction; discussing Supreme Court prec edent concluding that “a failure in a capital case to submit a lesser- included offe nse wh en raised by the evidenc e violates the

We note that Valade z was “looking at a life sentenc e” be cause of his status as a ha bitual 8 offe nder, not beca

use of the burg lary offe nse itself, which is classified as a felony of the second de g ree . See Tex. P enal Code A nn. § 30.02(c) (2) ( West 2011). 13constitution beca use there is an unwar

rante d risk that ‘a jury might convict a defe ndant of a capital offe nse beca

use it found that the defe ndant was g uilty of a serious [but lesser] crime.’ ”) (quoting Hopper v. Evans , 456 U.S. 605, 610 (1982))

. Howeve r, in this case , for the rea sons explained above, the lesser- included offe nse of theft was not raised by the evidenc e as a valid, rational alterna tive to the burg lary offe nse char g ed. Acc ordi n gl y , t h e constitutional conce rns identified in Grey are not implicated here , and we cannot conclude that the district court err ed in r efusing to instruc t the jury on the lesser -included of

fense of theft. We overrule Valade z’s second point of er ror.

CONCLUSION We affir m the judgme nt of the district court.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: Oc tober 26, 2011 Do Not Publish

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