IN THE
TENTH COURT OF APPEALS
No. 10-99-019-CR
DANNY WOODSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 82nd District Court
Falls County, Texas
Trial Court # 7233
O P I N I O N
Danny Woodson was found guilty by a jury of the offense of burglary of a habitation and was sentenced to ten years in prison. He contends that 1) the trial court committed reversible error and violated his Sixth Amendment rights when it allowed the State to introduce evidence of a statement from a co-defendant without giving him the right to confront and cross-examine that witness and 2) that the evidence was factually insufficient to support a finding of guilty on the charge of burglary of a habitation. We affirm the judgment of the trial court.
Facts
On the afternoon of May 15, 1998, Willie Coe was checking on a house that he owned in Marlin, Texas, when he found a piece of black felt on the ground. He decided to investigate further, so he went around the house, unlocked the front door, and went inside. Once inside the house, he found that every closet and drawer in the home were open. He reported the incident to the police.
Later that night, Coe and his wife decided to check on the house again. As his wife drove around the block, Coe took his gun and went to the back of the house to look around. (Coe testified that he sent his wife away for safety reasons.) As he approached the corner of the garage, he spotted Woodson and Michael Mitchell coming out of his back door carrying a TV. Coe fired his gun hitting Mitchell in the leg. The two men dropped the TV and ran back into the house. Coe ran around to the front of the house and caught Woodson coming out of the front window. He held Woodson at gunpoint until the police arrived.
Issue Two - Factual Sufficiency
In his second issue, Woodson attacks the factual sufficiency of the evidence supporting his conviction. Woodson admits being at the crime scene, however, he argues that he was only there to stop the burglary and was not participating in the crime. If a party is attacking the factual sufficiency of an adverse finding on an issue to which they did not have the burden of proof, they must demonstrate that there is insufficient evidence to support the adverse finding. Johnson v. State, No. 1915-98, slip op. at 15 (Tex. Crim. App. February 9, 2000).
The complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof....
Id. at 18. Stated differently, the evidence is factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. at 17. The jury is the judge of the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The jury had before it sufficient evidence to convict Woodson of the offense of burglary of a habitation. The elements of burglary of a habitation which the State had to prove in this instance are 1) a person 2) without the effective consent of the owner 3) enters a habitation 4) with intent to commit theft. Tex. Penal Code Ann. § 30.02 (Vernon 1994 & Supp. 1998). Circumstantial evidence may establish guilt. Nelson v. State, 905 S.W.2d 63, 64 (Tex. App.—Amarillo 1995, no pet.). In a burglary prosecution, specific intent to steal or commit theft may be inferred from the circumstances. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986). Intent may also be inferred from the defendant's conduct and surrounding circumstances. Turk v. State, 867 S.W.2d 883, 887 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd).
Woodson was identified at the scene by witnesses other than Coe, the victim. However, the mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction; although presence is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Johnson v. State, 537 S.W.2d 16, 18 (Tex. Crim. App. 1976). Coe testified that he had not given Woodson permission to enter his house. Woodson gave conflicting explanations for his presence at the victim’s house including: (1) that he was helping Mitchell move furnishings from what he thought was Mitchell’s house; and (2) that he was actually trying to catch the individuals that were burglarizing Coe’s house.
In addition to the nonconsensual nighttime entry and his inconsistent explanations, Woodson’s intent to commit theft is a reasonable inference from the fact that he was seen carrying the TV out the back door and his attempted flight upon being discovered. See Wilkerson v. State, 927 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1996, no pet.)(intent to commit theft shown by defendant’s nonconsensual nighttime entry into closed grocery store, defendant’s possession of gloves and a flashlight, his attempt to hide from the officers, and his inconsistent stories about having lawfully entered and then fallen asleep); Davis v. State, 783 S.W.2d 313, 318 (Tex. App.—Corpus Christi 1990, pet. ref'd--untimely filed)(intent to commit theft sufficiently shown where burglarious entry happened at night, defendant ran away when he was discovered but left flashlight on window sill).
The investigating officer testified that he did not do a complete investigation. The officers investigating the offense did not take fingerprints at the scene and did not test the blood on the defendant’s clothing to conclusively show if the blood was Woodson’s or that of another suspect. Woodson argues that this evidence would have conclusively proved whether or not he was involved in the burglary. However, our review of all the evidence presented shows that the judgment was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust nor was it against the great weight and preponderance of the available evidence. The evidence presented is, therefore, factually sufficient to support Woodson's conviction. Accordingly, issue two is overruled.
Issue One - Right to Confrontation
In his first issue, Woodson argues that the trial court committed reversible error and violated his Sixth Amendment rights when it allowed the State to introduce evidence of a statement from Mitchell without giving him the right to confront and cross-examine the witness. A co-defendant’s confession is inadmissible hearsay and its admission is generally harmful. Hood v. State, 828 S.W.2d 87 (Tex. App.—Austin 1992, no pet.). However, in this case, the actual statement by Mitchell was not offered by the State.
On direct, the investigating officer in describing the limited scope of his investigative procedure testified that he did not see any need to perform the additional tests because Mitchell’s statement matched Coe’s statement regarding the events that night. However, that portion of the officer’s testimony was stricken from the record and the jury was instructed to disregard it.
As defense strategy, Woodson attacked the adequacy of the investigation that linked him to the crime. During cross examination of the investigating officer, Woodson questioned why the investigating officer did not attempt to test the blood on Woodson’s clothing to see if it matched Woodson’s or the “real perpetrator.” Woodson contended the “real perpetrator” was cut while breaking out the front window to escape from Coe. Woodson’s position was that he got the “real perpetrator’s” blood on his clothing in his efforts to stop the “real perpetrator” as he was coming out the window. Further, Woodson questioned the adequacy of the investigation because no effort was made to obtain fingerprints from inside the house or off the TV that was being carried out the back door.
On re-direct examination, the officer was asked whether Mitchell’s statement was the reason for limiting his investigation. The testimony about which Woodson complains is as follows:
Prosecutor: Just answer “yes” or “no.” Did you take a statement from Michael Mitchell?
Officer: Yes, sir.
Prosecutor: I am not asking you what was in that statement, okay?
Defense Counsel: We object to any reference to a statement from a man that the State did not bring to Court to testify.
The Court: Overruled.
Prosecutor: Is that the reason that statement – is that the reason you did not take blood samples?
Defense Counsel: Object to that as a suggestion as some kind of a comment as to what that statement said. Since we do not have the benefit of cross-examination of Michael Mitchell, we object to the question and any answer.
The Court: Overruled.
Officer: That’s correct.
By inquiring about the evidence supporting the officer’s decision to limit the investigation, Woodson’s attorney made Mitchell’s statement relevant because it was directly responsive to his questions concerning the evidence relied upon by the officer and his decision to limit his investigation. Therefore, the trial court did not err by allowing the officer to discuss Mitchell’s statement in this limited context. Accordingly, we overrule Woodson’s first issue.
Conclusion
Having resolved both issues against Woodson, we affirm the judgment of the trial court.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed August 30, 2000
Do not publish