In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-06-00067-CV
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CAP ROCK ENERGY CORPORATION S/I/I CAP ROCK
ELECTRIC COOPERATIVE, INC., Appellant
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V.
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LAMAR COUNTY ELECTRIC COOPERATIVE
ASSOCIATION, ET AL., Appellees
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On Appeal from the 62nd Judicial District Court
Lamar County, Texas
Trial Court No. 70770
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Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
            Cap Rock Energy Corporation, S/I/I Cap Rock Electric Cooperative, Inc., appellant, has filed a motion seeking to dismiss its appeal due to the final settlement of the case in mediation. Pursuant to Tex. R. App. P. 42.1, the motion is granted.
            We dismiss the appeal.
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                                                                        Josh R. Morriss, III
                                                                        Chief Justice
Date Submitted:Â Â Â Â Â Â Â Â Â Â September 5, 2006
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â September 6, 2006
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In The
Court of Appeals
                       Sixth Appellate District of Texas at Texarkana
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                                                            No. 06-10-00075-CR
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                                    ALEX RAY JOHNSON, Appellant
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                                                               V.
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                                    THE STATE OF TEXAS, Appellee
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                                      On Appeal from the 188th Judicial District Court
                                                            Gregg County, Texas
                                                         Trial Court No. 37,932-A
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                                         Before Morriss, C.J., Carter and Moseley, JJ.
                                       Memorandum Opinion by Chief Justice Morriss
                                                     MEMORANDUM OPINION
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           In Linda MooreÂs ransacked duplex, from which several electronic items had been stolen, police found a single useable fingerprint on a CD case on the floor. That fingerprint was matched to Alex Ray Johnson, who was charged and convicted for the burglary.[1]
           On appeal, Johnson argues that there is legally and factually insufficient evidence to support his conviction. We affirm the conviction because the fingerprint evidence is legally sufficient to support the conviction.
           We do not address JohnsonÂs challenge to the factual sufficiency of the evidence, because a plurality of the Texas Court of Criminal Appeals very recently abolished the separate factual sufficiency review of evidence. See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at **1, 14 (Tex. Crim. App. Oct. 6, 2010) (Cochran, J., concurring, Womack, J., joining the concurrence) (4-1-4 decision).
           Moore lived with her fiancée in a duplex in Gregg County, Texas. Every other weekend, her fiancéeÂs two children stayed with them. Moore left for work around 7:15 a.m., Tuesday, January 29, 2008, and returned sometime between 12:00 noon and 1:00 p.m., to discover that the back door to the duplex had been kicked in and the door frame was damaged.[2] She testified that her living room was Ârummaged through, that the drawers in both bedrooms were pulled out, that clothes were thrown on the floor, and that mattresses were Âflipped up off the bed. A Playstation 2 video game console, twenty-five to thirty Playstation 2 video games, and a jar of change were missing.
           Moore testified that the CDs in the home and the missing games were all bought new from places like GameStop, Wal-Mart, or Target. She did not buy used games because Âyou never know if theyÂre going to work or if theyÂre scratched. The games stayed at the residence because the children were not allowed to take them anywhere. Â
           Officer Jerry Sullivan took photographs and swept the apartment for fingerprints. One identifiable fingerprint was lifted from a CD case found on the floor in the childrenÂs bedroom. Although there were fifteen to twenty smudged fingerprints found in the home and other fingerprints on the CD case, none of the other prints were usable because they were smudged. Sullivan testified that a fingerprint could last from hours to days.
           Detective Dan Reigstad, a physical evidence detective that Âprocess[ed] physical evidence and performed Âphysical evidence comparisons, explained that, when comparing fingerprints, he examines the two prints until he is Â100 percent sure that it is a match and thereÂs no possible chance it could be anyone else. After a manual comparison, Reigstad determined that the fingerprint found on the CD case matched JohnsonÂs fingerprints.Â
           In reviewing the evidence for sufficiency, we consider the evidence in the light most favorable to the verdict to determine whether 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, 318Â19 (1979). In the Brooks plurality opinion, the Texas Court of Criminal Appeals found Âno meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis[3] factual-sufficiency standard, and these two standards have become indistinguishable. Brooks, 2010 WL 3894613, at *8. Further, a proper application of the Jackson legal-sufficiency standard is as exacting a standard as any factual-sufficiency standard. See id. at *11. In a concurring opinion, Judge Cochran pointed out that the United States Supreme Court has rejected a legal sufficiency test that requires a finding that Âno evidence supports the verdict because it affords inadequate protection against potential misapplication of the Âreasonable doubt standard in criminal cases. Id. at *16 (Cochran, J., concurring). Rather than meeting a mere Âno evidence test, legal sufficiency is judged not by the quantity of evidence, but by the quality of the evidence and the level of certainty it engenders in the fact-finderÂs mind. Id. at *17.
           Johnson was charged by indictment with burglary of a habitation; the specific charge was that with intent to commit theft, he entered a habitation, without the effective consent of the owner, Moore. Our review under the hypothetically correct jury charge must be guided by the requirements of the alleged statutory alternative.  See Fuller v. State, 73 S.W.3d 250, 255 (Tex. Crim. App. 2002) (Keller, P.J., concurring); Mantooth v. State, 269 S.W.3d 68, 74 (Tex. App.ÂTexarkana 2008, no pet.).  Here, a hypothetically correct charge would require the jury to find, beyond a reasonable doubt, that:  (1) Johnson; (2) without the effective consent of the owner; (3) entered a habitation; (4) with intent to commit theft.[4]  Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).
           In Villarreal v. State, a homeÂs door had been forced open, two bedrooms had been ransacked, and checkbooks and cash were missing. 79 S.W.3d 806 (Tex. App.ÂCorpus Christi 2002, pet. refÂd). The police found fingerprints on CD covers, a clock radio, a television, and a computer. Id. at 810. All of the CDs were purchased new and of the thirty-five to forty CDs kept in one of the bedrooms, only one or two of them had ever been loaned out, and that was to a close friend with an understanding that no one else was to use them. Id. The fingerprints were matched to Villarreal. Id. Neither of the two homeowners knew Villarreal and neither had given him permission to be in the residence that day. Id. Even though highly unlikely possibilities could account for the presence of the defendantÂs fingerprints in a manner consistent with innocence, the court of appeals found the evidence sufficient to uphold the burglary conviction because, Âtaken as a whole, the evidence tends to show that the fingerprints were necessarily made at the time of the burglary and negates the probability that they were made prior to the time of the burglary. Id. at 812 (citing Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. [Panel Op.] 1980)); Neito v. State, 767 S.W.2d 905, 908Â09 (Tex. App.ÂCorpus Christi 1989, no pet.).
           The facts of this case parallel those of Villarreal. The evidence shows that MooreÂs home was forcibly entered and her property was taken.  It is undisputed that JohnsonÂs fingerprint was found inside the residence on a CD case Âthat had been moved from where they were at for the children.  Moore did not know Johnson and had never seen him before the day of the trial.  Moore testified that no one had permission to be in her home that day. Because there was no occasion for JohnsonÂs presence inside the home, it was reasonable for the jury to infer that the fingerprint must have been left during the burglary.[5] Accordingly, we overrule JohnsonÂs point of error and affirm the judgment.
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                                                                                   Josh R. Morriss, III
                                                                                   Chief Justice
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Date Submitted:Â Â Â Â Â Â Â Â Â November 23, 2010
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â November 24, 2010
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[1]After a jury trial, Johnson was found guilty of burglary of a habitation, was sentenced to twenty years imprisonment, and was fined $3,000.00.
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[2]MooreÂs fiancée arrived at the duplex sometime after the police arrived. The record is unclear whether, on the day in question, MooreÂs fiancée left for work before or after Moore.
[3]Clewis, 922 S.W.2d 126.
[4]ÂTheft is the unlawful appropriation of property with intent to deprive the owner of the property.  Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2010).  A person acts with intent Âwith respect to the nature of his conduct . . . when it is his or her conscious objective or desire to engage in the conduct. . . .  Tex. Penal Code Ann. § 6.03(a) (Vernon 2003).  In a burglary prosecution, the specific intent to commit theft may be inferred from the circumstances. Hawkins v. State, 467 S.W.2d 465, 466 (Tex. Crim. App. 1971).
[5]Johnson acknowledges that Âthe fingerprints of an accused, which necessarily must have been made at the time of the burglary, are sufficient to sustain a burglary conviction without further evidence of identification.ÂÂ Phelps, 594 S.W.2d at 435; Hernandez v. State, 190 S.W.3d 856, 864 (Tex. App.ÂCorpus Christi 2006, no pet.); Villarreal, 79 S.W.3d at 811.