TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00062-CR
v.
The State of Texas, Appellee
NO. 0965349, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
Facts
On August 27, 1996, the complainant returned home about 10:00 a.m. to discover someone inside his house. He immediately went next door and called the police. Although he kept a lookout until the police arrived, the person who was inside the house escaped undetected. When the police arrived, the complainant went with the officers inside the house. He found his house in disarray, a number of items missing, and several other items readied for removal. A floor safe in the bedroom had been pried from the floor and bore marks suggesting that someone had tried to beat it open. Although all of the doors and windows were secured, the police found a hole knocked in the sheetrock wall of an outside storage closet which was the burglar's probable point of entry.
Sufficiency of the Evidence
By points of error one and two, appellant challenges the legal and factual sufficiency of the evidence to support the jury's finding that appellant did not have consent to enter the complainant's house.
In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979), Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, we do not view the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.). We will set aside a verdict for factual insufficiency 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, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).
The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony, and may accept or reject all or any part of the evidence. Flanagan v. State, 675 S.W.2d 734, 736 (Tex. Crim. App. 1984); Tex. Code Crim. Proc. art. 38.04 (West 1979). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. Miller v. State, 909 S.W.2d 586, 593 (Tex. App.--Austin 1995, no pet.) (citing Bowden v. State, 628 S.W.2d 782, 787 (Tex. Crim. App. 1982). The jury may draw reasonable inferences and make reasonable deductions from the evidence. Benevides v. State, 763 S.W.2d 587, 588-89 (Tex. App.--Corpus Christi 1988, pet. ref'd).
A person commits burglary if, without the effective consent of the owner, he enters a habitation with intent to commit a felony or theft. Penal Code § 30.02(a). Without proof that appellant lacked the effective consent of the owner, the burglary conviction cannot stand. Eppinger v. State, 800 S.W.2d 652, 653 (Tex. App--Austin 1990, pet. ref'd). Lack of consent may be proven circumstantially. Taylor v. State, 508 S.W.2d 393, 397 (Tex. Crim. App. 1974). Consent means assent in fact, whether express or apparent. Tex. Penal Code Ann. § 1.07 (a)(9) (West 1994). There are no "magic words" which must be used to establish lack of consent. Prescott v. State, 610 S.W.2d 760 (Tex. Crim. App. 1981).
Appellant contends the complainant failed to state specifically that he did not give appellant consent to enter his home. Appellant contends the only facts established by the complainant's testimony were that he came home and he suspected an intruder had been in his home. The State concedes that the complainant was never asked whether he had consented to someone breaking through his wall, ransacking his house, or stealing his possessions. However, the State contends that based on other testimony, the complainant made it clear that he had been the victim of a burglary and did not consent to appellant entering his house.
Although the complainant did not use specific words at trial, we agree with the State there was evidence from which the jury could infer that the complainant did not give appellant consent to enter his home. Repeatedly, the complainant referred to the events of August 27 as a burglary and the person in his house as a burglar. The complainant testified that only he and his wife had keys to the house. Finally, as soon as the complainant realized someone other than his wife was inside the house, he went next door and called the police. This action is inconsistent with having given consent to appellant to enter his home.
We hold that the evidence is legally and factually sufficient to support the jury's determination that the complainant did not consent to appellant entering his house. We overrule points of error one and two.
Probable Cause
By point of error three, appellant contends that the court erred by denying his motion to suppress evidence because the arresting officers did not have probable cause to arrest him.
At the suppression hearing, the State had to show that at the time of the arrest, the facts and circumstances within the officer's knowledge, of which he had reasonably trustworthy information, were sufficient to warrant a person of reasonable caution in the belief that an offense was being or had been committed. Amores v. State, 816 S.W.2d 407 (Tex. Crim. App. 1991). The sum of all information available to all officers participating in the arrest should be considered by the court in making its probable cause determination. Muniz v. State, 851 S.W.2d 134 (Tex. 1993).
At the hearing, the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony. Dubose v. State, 915 S.W.2d 493, 496 (Tex. Crim. App. 1996). The appellate court must view the evidence in the light most favorable to the trial court's ruling and reverse only for an abuse of discretion. Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App.), cert. denied, 479 U.S. 885 (1986).
Officer Jeffrey Hellmer testified that several neighbors of the complainant reported to 911 that a Hispanic male, short in height, thin, with a receding hairline, wearing a white t-shirt, blue jeans, and white sneakers was in the area and acting suspiciously. Reports were that this man was jumping fences, hiding next to houses, and ducking in and out of drains.
Officer James Lara testified that about one hour after the burglary, he responded to a call from a woman who saw a man fitting the description of the suspicious man a couple of blocks from her house, which was about three miles from the complainant's house. The woman explained that she had been in the complainant's neighborhood that day about 10:30 a.m. house hunting. Seeing several police cars, she had stopped, talked with an officer, and heard the description of the suspicious person in appellant's neighborhood. Officer Lara left the woman's house, drove a few blocks, and found appellant emerging from a wooded area. As Lara approached appellant, Hellmer approached from the opposite direction and also stopped. Hellmer testified that appellant fit exactly the description of the suspicious person that had been in the complainant's neighborhood.
Lara performed a pat-down search of appellant because he thought appellant could be the burglar, and he knew that burglars often stole weapons so appellant could be armed. He found a lock-blade knife in appellant's left front pocket and a two-tone bone-colored lock-blade knife in his right rear pocket. Hellmer told Lara that knives were among the property stolen from the complainant and that one of the knives was "obviously" taken from the complainant's home. While Lara waited with appellant, Hellmer took one of the knives back to the complainant for identification. After the complainant identified the knife as his, Hellmer radioed the information to Lara who arrested appellant for the burglary.
Appellant contends that, at the time Lara and Hellmer stopped him, he was two to three miles away from the site of the offense, walking down the street, and not acting suspiciously. Appellant contends that the officers stopped him only based on a hunch and general characteristics which are insufficient to constitute probable cause to stop and arrest.
Viewing the evidence in the light most favorable to the court's ruling, we hold that the trial court did not abuse its discretion when finding that the officers had probable cause to arrest appellant. Both officers were investigating the burglary. Both had a detailed description of the suspicious individual seen jumping fences and hiding in the complainant's neighborhood just after the burglary. Officer Hellmer testified that appellant fit the description of the suspicious individual exactly. It was reasonable for the officers to infer that the suspicious acting individual committed the burglary. Finally, though the arrest occurred away from the scene of the offense, it was entirely likely that a burglar could have made his way three miles from the site of the burglary in an hour. We overrule point of error three.
Conclusion
We affirm the judgment of conviction.
Mack Kidd, Justice
Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll not participating
Affirmed
Filed: March 26, 1998
Do Not Publish
aking its probable cause determination. Muniz v. State, 851 S.W.2d 134 (Tex. 1993).
At the hearing, the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony. Dubose v. State, 915 S.W.2d 493, 496 (Tex. Crim. App. 1996). The appellate court must view the evidence in the light most favorable to the trial court's ruling and reverse only for an abuse of discretion. Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App.), cert. denied, 479 U.S. 885 (1986).
Officer Jeffrey Hellmer testified that several neighbors of the complainant reported to 911 that a Hispanic male, short in height, thin, with a receding hairline, wearing a white t-shirt, blue jeans, and white sneakers was in the area and acting suspiciously. Reports were that this man was jumping fences, hiding next to houses, and ducking in and out of drains.
Officer James Lara testified that about one hour after the burglary, he responded to a call from a woman who saw a man fitting the description of the suspicious man a couple of blocks from her house, which was about three miles