TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00145-CR
v.
The State of Texas, Appellee
NO. 19,264, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING
BACKGROUND
Around ten o'clock at night on August 27, 1996, Sandra Kay Cone was outside her home when she saw appellant round the corner of her house with a blanket slung over his shoulder. Startled, Cone asked appellant what he was doing. Appellant approached Cone as he repeatedly said, "I'm not doing anything." Cone screamed for her husband as she backed away from appellant. Alerted by Cone's scream, Lieutenant Tommy Roach of the Rockland Police Department, who was on surveillance nearby, came to the scene.
Roach first asked appellant what he was doing in Cone's backyard, and appellant replied he was going home. Roach recognized appellant and knew appellant's house was actually in a different direction than appellant was walking. Noticing appellant's stuttering and his shaking hands, Roach repeated his question several times. At least once, appellant replied he was coming from his "old lady's house," which Roach interpreted to mean appellant's wife's home. Perceiving appellant's nervous demeanor and knowing appellant was not married, Roach thought appellant was lying. Roach also asked appellant what was in the blanket he was carrying, and appellant replied he was carrying clothes. At some point during Roach's questioning, appellant put down the blanket, and Roach noticed a white ceramic bowl inside the blanket. Upon further investigation, Roach also found a large plate, a flannel night gown, a Christmas card addressed to "Lelah," a serape-style blanket, a patchwork quilt, an extension cord, a ladle, and various other small items all inside the blanket. Upon this discovery, Roach concluded appellant had just committed a crime and was fleeing the scene. Roach placed appellant in investigative custody and called for an officer to transport him to the police department. Roach then began to search the surrounding neighborhood to see whether any houses had been burglarized.
Roach talked first to the Cones, whereupon he discovered Lelia Horton owned the house next door to them. Remembering that the Christmas card in appellant's bundle was addressed to "Lelah," Roach went to the Horton residence to investigate. Once there, Roach found the door kicked in and the house in a state of disarray, with some items strewn on the floor and others clearly out of place. On a dusty shelf, Roach also noticed a clean outline of an object which appeared to be the size of the bowl he found in appellant's bundle.
Appellant was indicted for burglary of a habitation to which he pleaded not guilty. The jury convicted him, and the trial court imposed sentence. Appellant now appeals his conviction. In two points of error, appellant argues that the evidence was legally and factually insufficient to support to the jury's verdict. (1)
STANDARD OF REVIEW
The critical inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question for the appellate court 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. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, the appellate court does not view the evidence in the light most favorable to the prosecution, but rather, equally and impartially compares the evidence supporting the verdict with that tending to disprove the verdict. The court, however, does not substitute its judgment for that of the jury, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 136 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed). The standard of review is the same for circumstantial evidence cases as for direct evidence cases. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991).
DISCUSSION
A person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation not then open to the public, with intent to commit a felony or theft. See Tex. Penal Code Ann. §30.02(a)(1) (West 1994). The charge required the jury to find appellant guilty if appellant "did intentionally or knowingly enter a habitation not then open to the public that was owned by Irene Garza, without the effective consent of Irene Garza, with the intent then and there to commit the offense of theft of personal property therein . . . ."
In his first point of error, appellant argues the evidence is legally insufficient. Appellant first attacks the State's proof establishing Irene Garza's ownership of the Horton residence, contending that Garza's authority to care for the Horton residence had expired. Anyone with a greater right to actual care, custody or control of a building than the accused may be alleged as the owner. See Mack v. State, 928 S.W.2d 219, 222-23 (Tex. App.--Austin 1996, pet. ref'd). At trial, Garza testified Lelia Horton owned the residence but had authorized Garza to care for the property while she was out of town. (2) Garza further testified she was caring for the property when the burglary occurred. Based on Garza's testimony, the jury could have found beyond a reasonable doubt Garza had a greater right to care of the residence than did appellant. Therefore, we find the evidence legally sufficient to support Garza's ownership of the residence.
Appellant next maintains the evidence was legally insufficient to establish his entry into the Horton residence with intent to commit theft. Appellant claims that no one saw him enter or exit the Horton residence. The State, however, is not required to establish entry by producing a witness; rather, appellant's entry may be inferred from the surrounding circumstances. In a burglary case, guilt, including the element of entry, may be established by circumstantial evidence. See Nelson v. State, 905 S.W.2d 63, 64 (Tex. App.--Amarillo 1995, no pet.). Direct evidence that the defendant actually entered the residence to commit theft is unnecessary if the record nevertheless discloses a burglary occurred, the defendant possessed some or all of the stolen property, and the defendant failed to proffer a reason for having it. See Nelson 905 S.W.2d at 64; Garza v. State, 841 S.W.2d 19, 21-22 (Tex. App.--Dallas 1992, no pet.). Entry made without consent in the nighttime is presumed to have been made with intent to commit theft. Wilkerson v. State, 927 S.W.2d 112, 115 (Tex. App.--Houston [1st Dist.] 1996, no pet.). This presumption may be considered by an appellate court in determining the sufficiency of the evidence to support a finding of intent. Id. Furthermore, the jury is exclusively empowered to determine the issue of intent in a burglary trial. McGee v. State, 923 S.W.2d 605, 608 (Tex. App.--Houston [1st Dist.] 1995, no pet.)
At trial, Roach testified that on the night he found appellant in the yard next door to the Horton residence, Roach also discovered the residence appeared to have been recently burglarized. Roach further testified appellant was carrying a bundle containing certain items later identified as missing from the Horton residence. Roach also testified appellant seemed nervous and lied about the contents of the bundle he was carrying. In addition, Garza testified she had inspected the home just two days before the burglary was discovered and found no evidence anything was amiss. From this evidence, the jury could have found beyond a reasonable doubt that appellant entered the Horton residence. Furthermore, based on Garza's testimony she had not given appellant consent to take the items in question from the Horton residence, the jury could have inferred appellant's nighttime entry into the Horton residence was made without Garza's consent and, therefore, with the intent to commit theft. We find the evidence is legally sufficient to support appellant's entry into the Horton residence with intent to commit theft. Point of error one is overruled.
In his second point of error, appellant contends the evidence is factually insufficient to support his conviction. The State introduced evidence appellant was found at night in the yard next door to the Horton residence carrying items later identified as missing from the Horton residence. Furthermore, the alleged owner testified she had not given appellant permission to take the items. Appellant lied to a police officer about what the items were and failed to provide a satisfactory explanation regarding his presence in the yard next door to the burglarized residence. The jury's verdict is not so contrary to the overwhelming evidence as to be clearly wrong or unjust. We find the evidence is factually sufficient to support appellant's conviction and overrule point of error two.
CONCLUSION
Having determined the evidence is both legally and factually sufficient to support the jury's verdict, we overrule appellant's points of error and affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: March 5, 1998
Do Not Publish
1. Although represented by counsel, appellant filed a pro se supplemental brief raising additional points of error. We have considered them and find them to be without merit.
2. Garza explained Horton had planned to be away for only two weeks but, at the time of trial, had been away for two years. In the meantime, Garza had been periodically inspecting the property.
fied she was caring for the property when the burglary occurred. Based on Garza's testimony, the jury could have found beyond a reasonable doubt Garza had a greater right to care of the residence than did appellant. Therefore, we find the evidence legally sufficient to support Garza's ownership of the residence.
Appellant next maintains the evidence was legally insufficient to establish his entry into the Horton residence with intent to commit theft. Appellant claims that no one saw him enter or exit the Horton residence. The State, however, is not required to establish entry by producing a witness; rather, appellant's entry may be inferred from the surrounding circumstances. In a burglary case, guilt, including the element of entry, may be established by circumstantial evidence. See Nelson v. State, 905 S.W.2d 63, 64 (Tex. App.--Amarillo 1995, no pet.). Direct evidence that the defendant actually entered the residence to commit theft is unnecessary if the record nevertheless discloses a burglary occurred, the defendant possessed some or all of the stolen property, and the defendant failed to proffer a reason for having it. See Nelson 905 S.W.2d at 64; Garza v. State, 841 S.W.2d 19, 21-22 (Tex. App.--Dallas 1992, no pet.). Entry made without consent in the nighttime is presumed to have been made with intent to commit theft. Wilkerson v. State, 927 S.W.2d 112, 115 (Tex. App.--Houston [1st Dist.] 1996, no pet.). This presumption may be considered by an appellate court in determining the sufficiency of the evidence to support a finding of intent. Id. Furthermore, the jury is exclusively empowered to determine the issue of intent in a burglary trial. McGee v. State, 923 S.W.2d 605, 608 (Tex. App.--Houston [1st Dist.] 1995, no pet.)
At trial, Roach testified that on the night he found appellant in the yard next door to the Horton residence, Roach also discovered the residence appeared to have been recently burglarized. Roach further testified appellant was carrying a bundle containing certain items later identified as missing from the Horton residence. Roach also testified appellant seemed nervous and lied about the contents of the bundle he was carrying. In addition,