NO. 07-07-0358-CR
NO. 07-07-0359-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 30, 2008
______________________________
KENNETH GLENN WEBB,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 18,617-B & 18,618-B; HON. JOHN B. BOARD, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Kenneth Glenn Webb appeals his convictions for burglarizing a habitation and
assaulting a public servant. His points of error concern the legal and factual sufficiency of
the evidence supporting those convictions. We affirm.
Applicable Law
The standards by which we review legal and factual sufficiency challenges are well
established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for an
explanation of them.
Background
On December 28, 2006, around 12:40 a.m., Sergeant Dustin Ponder arrived at
4103 Escondido to investigate a security alarm that had sounded. He was not dressed in
a regular patrol uniform but rather was wearing a polo shirt with a small police department
emblem on it, a police badge affixed to his belt, and a service weapon. As Ponder walked
around the house, appellant walked out of the backyard through a wooden gate next to the
driveway. The officer stopped appellant and asked whether he lived there. Appellant said
that he did not and then ran away when asked for identification.
Ponder gave chase and the two struggled at some point. During the struggle,
Ponder twice identified himself as a police officer. Nonetheless, appellant struck him in the
groin and regained his freedom. Another chase ensued, which resulted in appellant
reaching his truck that was parked in the alley near the house in question. As appellant
attempted to start the vehicle, Ponder grabbed the keys. In response, appellant grabbed
the officer’s arm and threatened to cut him. Eventually, another policeman, who happened
to be wearing a standard police uniform, arrived. Yet, appellant continued to refuse to
obey the verbal orders of both policemen, though they eventually subdued him.
After the arrest, Ponder returned to the home where appellant was first
encountered. He did not enter it because no one was there and the doors were locked.
Moreover, from peering through the windows, the officer concluded that nothing inside
looked as if it had been disturbed. Yet, investigation revealed black pry marks on a back
door by the locks, and a pry bar or tire iron was found on the front seat of appellant’s truck.
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The bar had “black all over it” according to the prosecutor who warned others against
handling it excessively. So too had the tip of the tool been modified, according to an
officer, in a way to give it more bite when used as a prying device.
The owners of the residence were out of town at the time of the incident but
returned later that same day. They discovered that someone had indeed been in their
house and that a Visa debit card and several checks were missing. The homeowner also
testified that he had engaged both the dead bolt and door knob lock before leaving but that
only the door knob lock was engaged when he returned home.
None of the items missing from the house were found on appellant or in the truck.
Nonetheless, someone charged items to the debit card later that day and at a time when
appellant was in jail. The person who made the charges went unidentified.
Assault on a Public Servant
We initially address whether the evidence was both legally and factually sufficient
to support the conviction for assaulting a public servant. The thrust of appellant’s
complaint focused on whether he knew the person he was assaulting was a police officer.
We overrule the issue.
The record contains evidence illustrating that Ponder wore a shirt with a police
emblem on it and carried a badge on his belt at the time he initially encountered appellant.
Further, the area of the initial encounter was well lit, according to the officer. The officer
also testified that while he was being assaulted by appellant, he identified himself as an
officer; this did not dissuade appellant for the assault continued both when the two
grappled while afoot and when appellant (when sitting in the truck) grabbed the officer’s
arm and threatened to “cut” him.
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One is presumed to know that he assaulted a public servant if the victim was
wearing a distinctive uniform or badge indicating the person’s employment as a public
servant. TEX . PEN . CODE ANN . §22.02(c) (Vernon Supp. 2007). While Officer Ponder was
not adorned in the standard or stereotypic police uniform at the time, the emblem on his
shirt coupled with the presence of his badge and service weapon could reasonably be
likened to distinctive items identifying him as an officer. To this we had the evidence that
he identified himself to appellant as an officer while being assaulted. Combined, this is
some evidence from which a rational factfinder could conclude, beyond reasonable doubt,
that appellant knew he was assaulting an officer.
Though appellant contradicted much of what Ponder said and proclaimed that he
did not know that Ponder was an officer, that simply raised credibility and factual issues for
the factfinder to resolve. We cannot say that the manner in which they were resolved was
so against the great weight of the evidence or supported by weak evidence as to
undermine our confidence in that finding. Consequently, the verdict had the support of
both legally and factually sufficient evidence.
Burglary of a Habitation
Next, we address the conviction for burglarizing a habitation. According to
appellant, he believed the evidence was deficient since it did not place him within the
home. While resolution of this issue is more problematic, we, nonetheless, overrule it.
That burglary can be proven solely through circumstantial evidence is a well-settled
proposition. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. 1978). It is also
true that the element of entry can be established by inference. Blevins v. State, 6 S.W.3d
566, 569 (Tex. App.–Tyler 1999, pet. ref’d).
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Here, we have evidence that the debit card and checks were present when the
homeowners left on vacation and were missing when they returned. To this we add
appellant’s admission that he was in need of money to buy gas for his truck, that he drove
through the area and down the particular alley in search of gas to steal or items from which
gas could be obtained. And, though he initially suggested that he was willing to ask people
he encountered while going through the area for money, he ran from the only person he
met. Moreover, he was cognizant of the art of burglarizing homes given his prior conviction
for the same.1 So too did he have a tool that could be used to gain entrance through
locked doors readily available on (rather than under or behind) the seat of his truck and
that tool had been modified to facilitate forced entry. Most importantly, the tool had a black
substance on it that apparently left black residue, and black residue was found in the pry
marks (which marks were not present when the homeowners left). Finally, no one else was
found at the scene.
Appellant’s having a need for money, his picking a particular area for the purpose
of committing some theft late at night, his possession of a pry bar or tire iron suitable and
adapted for committing burglary, his presence at the scene when the burglar alarm
sounded, the evidence that the burglar alarm was set to trigger when someone entered
through a door or window, the similarity in color between the residue emitted from the tire
iron and found in the pry marks, his attempt to flee when confronted, the absence of
evidence indicating that anyone else was present, and the absence of items from the
1
W hile evidence of prior bad acts or convictions cannot norm ally be used to support an inference of
guilt, this testim ony cam e in without objection. And, when that occurs, the evidence is deem ed adm itted for
all purposes. Delgado v. State, 235 S.W .3d 244, 251 (Tex. Crim . App. 2007).
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house constitute some evidence from which a rational factfinder could infer, beyond
reasonable doubt, that appellant entered the abode.
That none of the missing items were found on his person or in the truck is troubling,
as is the evidence that the debit card was used by someone while appellant sat in jail and
that the doors were locked.2 While this suggests that someone other than appellant
acquired at least one of the stolen items, it does not necessarily disprove his entry into the
abode. Indeed, it could be that during the chase appellant was discarding the items taken
and that the debit card was later found by someone else. Admittedly, this possibility went
undeveloped at trial. So too was it possible that someone else was with appellant at the
time for Officer Ponder stated that such a person would have had enough time to leave
while the officer gave chase and fought with appellant. Be that as it may, neither
proposition finds support in the record; yet because they are potential logical explanations
of how someone other than appellant was using the card, we cannot say that evidence of
someone else using it requires one to infer that someone other than appellant committed
the burglary. Use of the card by a third party is a piece of the puzzle that does not readily
fit but it does not prevent a viewer from nonetheless recognizing the picture displayed by
the remaining pieces.
Nor can we say that the fact that the doors were locked causes great concern.
Testimony appears of record indicating that though a door is pried open, it can often be
closed and locked after the forced entry. And, while appellant contradicted much of what
Officer Ponder said, that simply raised questions of fact and credibility for the factfinder to
2
An officer testified that the usual m odus operandi for burglars was to leave doors open when they
left the scene.
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resolve. In toto, we cannot say these circumstances were of such import so as to
undermine our confidence in the verdict, especially in view of appellant’s possessing
burglary implements, his avowed need for money and intent to commit theft, his effort to
flee, his presence at the scene and near the time the alarm sounded, and the similarity
between the residue on the door and on the tire tool. Thus, we conclude that the evidence
was both legally and factually sufficient to support the conviction of burglary of a habitation.
Having overruled appellant’s issues, we affirm the judgments.
Brian Quinn
Chief Justice
Do not publish.
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