IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 17, 2007
______________________________
GERALD LESLIE COOTS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64th DISTRICT COURT OF HALE COUNTY;
NO. A14249-0111; HON. ROBERT W. KINKAID, JR., PRESIDING
_______________________________
ON MOTION TO DISMISS
__________________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Gerald Leslie Coots, by and through his attorney, has filed a motion to dismiss his appeal because he no longer desires to prosecute it. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.2(a) and dismiss the appeal. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith.
Brian Quinn
Chief Justice
Do not publish.
ly convicted.
By his sole issue, Appellant challenges the trial court's denial of his motion for a directed verdict. A challenge to the denial of a motion for a directed verdict is essentially a challenge to the legal sufficiency of the evidence. E.g., Rice v. State, 195 S.W.3d 876, 879 (Tex.App.-Dallas 2006, pet. ref'd). See also Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). But because Appellant also claims the evidence was factually insufficient, we will review the evidence for both legal and factual sufficiency.
When both the legal and factual sufficiency of the evidence are challenged, we first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is proved beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2006); Tex. Penal Code Ann. § 2.01 (Vernon 2003). When conducting a legal sufficiency review, we must determine 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App. 2006). We conduct this analysis by considering all the evidence-whether proper or improper-so that we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App. 1996). The standard of review is the same for both circumstantial and direct evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). We must uphold the verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
Conversely, when conducting a factual sufficiency review, we examine all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004 ), overruled in part by Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006). We cannot reverse a conviction unless we find some objective basis in the record that demonstrates that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. In other words, we cannot conclude that Appellant's conviction is "clearly wrong" or "manifestly unjust" simply because we disagree with the jury's verdict. Id.; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
To determine whether the evidence was sufficient to support Appellant's conviction, we must also review the elements the State was required to prove. As alleged in the indictment, a person commits burglary if, without the effective consent of the owner, he enters a habitation with the intent to commit theft. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). The commission of this offense can be proven solely by circumstantial evidence. See, e.g., Rollerson v. State, 196 S.W.3d 803, 806 (Tex.App.-Texarkana 2006, pet. granted); Roberson v. State, 16 S.W.3d 156, 164 (Tex.App.-Austin 2000, pet. ref'd). In fact, a defendant's exclusive and unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. Poncio v. State, 185 S.W.3d 904, 905 (Tex.Crim.App. 2006). This inference is not conclusive, however, and the sufficiency of the evidence must still be examined pursuant to the applicable standards of appellate review. Rollerson, 196 S.W.3d at 806-07; Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App. 1983).
Here, Appellant does not deny that he pawned the stolen items but contends the State failed to prove that his ownership of the stolen property was recent. To warrant an inference of guilt based solely on the defendant's possession of stolen property, the possession must involve a distinct and conscious assertion of a possessory right to the property by the defendant and the assertion of that right must be "recent" in relation to the time frame of the alleged offense. Middleton v. State, 187 S.W.3d 134 (Tex.App.--Texarkana 2006, no pet. h.) Focusing solely on the January 27 pawn transaction, Appellant argues that the seventeen-day gap between the burglary and the pawn transaction made it more reasonable for the jury to infer that he obtained the stolen property by some means other than burglary. However, the evidence fails to offer an alternative explanation for how he obtained possession of the stolen items. In addition, Appellant's argument fails to account for the pawn receipt dated January 14 that was admitted into evidence as State's Exhibit 1. Given the fact that the January 14 pawn receipt linked Appellant to some of the stolen items as early as four days after the burglary, we find that a rational juror could have inferred that Appellant was guilty of burglary beyond a reasonable doubt. See Poncio, 185 S.W.3d at 904-05. Furthermore, the testimony of the pawn shop manager places Appellant in possession of additional stolen items thirteen days later on January 27. The jury, as the exclusive judge of the facts and credibility of the witnesses, is free to believe or disbelieve any part of a witness's testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Based on this evidence, we find that the evidence was legally and factually sufficient to support Appellant's conviction for burglary and that the trial court did not err by denying Appellant's motion for directed verdict.
Accordingly, we affirm the trial court's judgment.
Patrick A. Pirtle
Justice
Do not publish.
1. § 12.42(d), Tex. Penal Code (Vernon Supp. 2006).