Affirmed and Memorandum Opinion filed July 10, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-01118-CR
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RUBEN GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 884,838
M EM O R A N D U M O P I N I O N
Following a jury trial, appellant Ruben Garcia was convicted of burglary of a habitation. See Tex. Pen. Code Ann. ' 30.02(a)(1) (Vernon Supp. 2003). Asserting two points of error, appellant argues the evidence was legally and factually insufficient to sustain his conviction. We affirm.
FACTUAL AND PROCEDURAL HISTORY
This cause of action arises from the August 6, 2001 burglary of a home in Baytown, Texas. The sole witness to the offense was Anita Flores, sister-in-law of the complainant, Zenaida Flores. Anita lived in the home with complainant and complainant=s husband, Eli Flores.
According to evidence presented at trial, Anita and her boyfriend arrived at the Flores home at approximately 7:30 pm the day in question. As Anita’s boyfriend backed Anita’s truck into the Flores garage, Anita stood in the garage to help direct him. Although Anita was the first occupant of the house to return home that eveningCand presumably the house was emptyCAnita heard a noise coming from the direction of the house. She saw a doorknob turn and a person whom she would later identify as appellant Ruben Garcia exit the house. Appellant carried a video cassette recorder.
Upon seeing Anita, appellant made a threatening gesture, and appellant and Anita stared at each other for approximately three seconds. Appellant then covered his face, took off running, and jumped a 4’ fence in the Flores’ backyard. Although Anita and her boyfriend gave chase and drove around the block in an effort to track down the thief, their efforts were unsuccessful. They called 9-1-1 and police arrived at the scene. Also arriving at the scene were complainant and Anita=s brother, Ernesto. Complainant searched her home and discovered a video cassette recorder was missing. Also missing were a rifle, piggy bank, jewelry, and some saws.[1]
When asked to provide a description of the intruder, Anita described an Hispanic male, wearing black, baggy jeans, a copper-colored T-shirt, with a distinctive hairstyle. She guessed he was about 5’4” tall. When Ernesto, who was standing nearby and who knew appellant by sight, heard Anita’s description, he suggested to police that it sounded like appellant. He added that he had seen appellant in the vicinity of the Flores garage on two separate occasions in recent weeks. Appellant’s father operated a mechanic’s shop immediately behind the Flores home, appellant’s family lived in the area, and Ernesto knew appellant through Ernesto’s friendship with appellant’s brother.
The night of the break-in, police officers detained and brought two Hispanic males to Anita for her identification as possible suspects. She indicated neither was involved in the burglary. One week later, however, the police presented Anita with a photo spread of six possible suspects; this time, she positively identified appellant as the person she saw coming from the house and placed her initials by his picture.
At trial, Anita identified appellant in court and testified she was certain about her identification of appellant as the burglar. She also testified she would have been able to identify appellant even without the photo spread.
Complainant testified at trial as well. She testified that, in the days proceeding the break-in, she was approached by appellant, who asked for money. She also testified that appellant had been given permission to enter her home by her husband and brothers-in-law, but on the date in question he did not have permission to enter her home.
Appellant=s father and appellant testified for the defense. Appellant=s father testified that, although it was possible appellant was in the area without his knowledge, he did not see appellant during the summer of 2001. He also testified that the fence separating his and complainant=s homes was 6 feet tall, not 4 feet.
Appellant testified he was in California on and around August 6, 2001 and that he had an alibi for the date of the offense. He testified he was 5’8” tall and that he once served time in prison for burglary of a habitation.
On October 30, 2002, a jury found appellant guilty of burglary of a habitation and assessed punishment at 25 years’ confinement in the Texas Department of Criminal Justice Institutional Division. Appellant gave timely notice of appeal.
DISCUSSION
Asserting two points of error, appellant contends that the facts were (1) legally and (2) factually “insufficient to sustain [his] conviction for burglary of a habitation for the reason that there was not sufficient evidence to prove [his] identity as the perpetrator of the offense.” Because Anita had only a few seconds to observe the intruder, because her estimate of the intruder’s height varied four inches from appellant’s true height, because the initial suggestion of appellant as the intruder came from Ernesto, and because Ernesto knew appellant only in passing through appellant’s brother, evidence was insufficient, he claims, to prove appellant was the individual leaving the Flores home the night of the burglary. We disagree.
Standard of Review
In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We 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, 319; 99 S. Ct. 2781, 2789 (1979); Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996); Grant v. State, 989 S.W.2d 428, 432 (Tex. App.CHouston [14th Dist.] 1999, no pet.). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
The jury, as the trier of fact, “is the sole judge of the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. Id.
In evaluating the factual sufficiency of the evidence, we view the evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Which standard applies has generally depended on whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof at trial, then the first, or “manifestly unjust standard,” has applied. Id. If the complaining party on appeal had the burden of proof at trial, then the second, or “against the great weight and preponderance standard,” has applied. Id.
We must review the evidence weighed by the jury tending to prove the existence of the elemental fact in dispute, and compare it to the evidence tending to disprove that fact. Id. at 7. Our review must be appropriately deferential to avoid substituting our judgment for the fact finder=s. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).
Analysis
To prove the offense of burglary of a habitation, the State must show (1) the accused (2) without the owner’s consent, (3) entered a habitation, (4) with intent, (5) to commit a felony, theft or assault. Tex. Pen. Code Ann. ' 30.02(a)(1) (Vernon Supp. 2003); see also Carlock v. State, 8 S.W.3d 717, 722 (Tex. App.CWaco 1999, pet. ref=d). Thus, the State must prove beyond a reasonable doubt that the accused is the person who committed the crime charged. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.CHouston [14th Dist.] 2001, pet. ref’d).
Mistaken identity is not a defense. Giesberg v. State, 984 S.W.2d 245, 251 (Tex. Crim. App. 1998). Rather, it is a defensive theory offered to negate the identity element of an offense. Giesberg v. State, 945 S.W.2d 120, 124 (Tex. App.CHouston [1st Dist.] 1996), aff=d 984 S.W.2d 245 (Tex. Crim. App. 1998).
For the purposes of proving reasonable doubt, direct and circumstantial evidence are equally probative. Smith, 56 S.W.3d at 744; see also McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). Identity may also be proven by inferences. See United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.CAustin 2000, pet. ref’d).
Here, the State produced the following evidence to show appellant was the individual who burglarized the Flores home: (1) Anita’s testimony that the intruder was an Hispanic male, same as appellant, with a similar, distinguishable hairstyle; (2) Anita’s identification of appellant from a photo spread and again in court; (3) complainant=s testimony that appellant approached her for money just days before the incident and that appellant previously had been in her home; (4) Ernesto’s testimony that he saw appellant in the Flores garage and near the Flores home on two separate occasions prior to the intrusion; and (5) appellant=s father=s testimony that, in spite of appellant’s alibi claim, appellant could have indeed been in Baytown on the day in question. The State also produced evidence that appellant’s father operated a mechanic’s shop immediately behind the Flores home, and appellant once served time for burglary of a habitation. Although appellant produced several pieces of evidence to suggest he was working in Florida in early 2001 and in California in late 2001, he proffered no evidence other than his own testimony to suggest he was working in California at the time of the burglary.[2]
To determine witness reliability when a suspect is identified, the totality of the circumstances must be reviewed, including: (1) the witness=s opportunity to view the accused; (2) the degree of attention exhibited by the witness; (3) the accuracy of the witness’s description; (4) the witness’s level of certainty; and (5) the time between the crime and the confrontation. Harvey v. State, 3 S.W.3d 170, 174 (Tex. App.CHouston [14th Dist.] 1999, pet. ref’d), citing Garza v. State, 633 S.W.2d 508, 512B13 (Tex. Crim. App. 1982). A conviction may be based on the testimony of a single eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); see also Pitte v. State, CS.W.3d.C, 2003 WL 1391561, at *6 (Tex. App.CTexarkana March 21, 2003, no pet. h.).
Here, we conclude Anita’s identification was reliable. She testified she observed the intruder in clear light, had a direct view of the intruder, and looked directly into the intruder’s eyes. In addition, she picked appellant out of a photo spread less than a week after the break-inCdespite never having seen him before the date in questionCand she testified she was very sure of her identification.
Moreover, Ernesto and complainant testified they saw appellant in the vicinity of the Flores garage just weeks before the burglary. Although “[m]ere presence of an accused at the scene of an offense is not alone sufficient to support a conviction . . . it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show the accused was a participant.” Mabra v. State, 997 S.W.2d 770, 774 (Tex. App.CAmarillo 1999, pet. ref’d), citing Johnson, 537 S.W.2d at 18.
From the foregoing, we conclude that, when viewing the evidence in the light most favorable to the prosecution, a rational jury could have found the essential elements of burglary of a habitationCincluding the element of appellant’s identityCbeyond a reasonable doubt. Thus, we conclude there was legally sufficient evidence to support appellant’s conviction. See Turro, 867 S.W.2d at 47.
We also find that, after a neutral review of all the evidence, the evidence is not so weak as to be clearly wrong or manifestly unjust, or so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Therefore, we conclude there is factually sufficient evidence to support appellant’s conviction as well. See Johnson, 23 S.W.3d at 11.
Finding both legally and factually sufficient evidence to sustain appellant’s conviction for burglary of a habitation, we overrule appellant=s points of error and affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed July 10, 2003.
Panel consists of Justices Anderson, Seymore, and Guzman.
Do Not PublishCTex. R. App. P. 47.2(b).
[1] At trial, complainant testified that the rifle, piggy bank, jewelry, and saws were discovered missing a few days prior to August 6.
[2] At trial, appellant claimed he was working in California in August, 2001 and so had an alibi for the date of the burglary. He testified that because he worked for “cash money,” he could not substantiate this claim with documentary proof. Nevertheless, appellant submitted the following eleven exhibits at trial to “corroborate his testimony” about his alibi: (1) an employee badge, dated March 3, 2000, from the “Houston Safety Council,” allegedly issued to appellant by Safway Steel Products Scaffolding, a Houston firm with offices in Florida and California; (2) a pay stub from Safway Steel Products Scaffolding in Florida issued to appellant for the pay period of April 7B13, 2001; (3) a union card issued to appellant from a California carpenter’s union indicating appellant paid dues to the union on October 8, 2001; (4) a union work-referral slip from the California carpenter=s union with no date; (5) a training card issued to appellant from Chevron Refinery in California, dated October 11, 2001; (6) a Chevron Refinery certification card dated October 29, 2001 indicating appellant was given medical and fitness tests October 11 and 22, 2001; (7) a pay stub issued to appellant from Safeway Scaffolding in California for the pay period ending November 4, 2001; (8) a termination notice from Interstate Scaffolding, Inc., issued to appellant November 13, 2001; (9) a second union work-referral slip from the California carpenter’s union with no date; (10) a pay stub from Hightower Staffing, Inc., issued to appellant for the pay period ending December 16, 2001; and (11) a California automobile certificate of title issued to a person named Valadez Anarosa Marquez, dated September 21, 2001, which appellant claims corroborates appellant’s purchase of Marquez’s car in April, 2002.