Rojelio A. Trevino v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-10-00472-CR
NO. 02-10-00473-CR
NO. 02-10-00474-CR

ROJELIO A. TREVINO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1
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Introduction

In three points, Appellant Rojelio A. Trevino appeals his three burglary

convictions. We affirm.

1
See Tex. R. App. P. 47.4.
 Procedural Background

The State charged Appellant in separate indictments with burglarizing four

habitations. Each indictment contained an enhancement paragraph alleging that

Appellant had been previously convicted of two felonies. The jury found

Appellant guilty of three of the four burglaries. Appellant elected to have the trial

court assess punishment, and he pleaded true to the enhancement paragraphs.2

The trial court found the enhancement paragraphs to be true and assessed

Appellant’s punishment at thirty-five years’ confinement in each case, to run

concurrently. The trial court sentenced Appellant accordingly.

Evidentiary Sufficiency

In his three points, Appellant challenges the sufficiency of the evidence to

support his three burglary convictions.

The State’s Evidence

This appeal involves the burglaries of four homes located within a one-mile

radius in South Arlington on March 11, 2010, between approximately 6:00 p.m.

and 8:30 p.m. Although the jury acquitted Appellant of the fourth burglary, we

discuss it to provide context to Appellant’s arrest.

2
Because Appellant pleaded true to the habitual offender notices alleged in
each offense, his range of punishment for the second-degree burglaries was
twenty-five to ninety-nine years or life. See Tex. Penal Code Ann. ' 12.42(d)
(West Supp. 2011), ' 30.02(c)(2) (West 2011).

2
 The Allison/Johnston Burglary

Edward Allison testified that he lived in a house with his “surrogate father”

Donnie Johnston and Johnston’s adopted son. On March 11, 2010, at

approximately 5:30 p.m., Allison was working in his yard when he saw an

individual (whom he identified later that night and at trial as Appellant) walking

toward his front door. Allison went inside, and he noticed that the dogs (who

always barked when someone rang the doorbell) were not barking. Allison

estimated that it took Appellant “a good minute and [a] half” before he rang the

doorbell. When Allison answered the door, Appellant asked if he needed any

yard work done. Allison told him no, and Appellant left. Shortly thereafter,

Allison left to meet Johnston at Johnston’s salon.

At approximately 8:00 that evening, Allison and Johnston returned home to

find that someone had entered their home without their permission and stolen

some of their property—the garage door and back door were open, all the inside

cabinets were open, and both Allison’s and Johnston’s bedrooms had been

ransacked.3 Personal items were strewn inside and outside of the house,

including in the bushes around their home. An expensive bicycle and several

tools were missing from the garage. Allison was also missing a black leather

motorcycle jacket with a tan racing stripe down the sleeve. The front door’s

deadlock key was missing.

3
Johnston’s son remained asleep in his bedroom throughout the offense.

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 The Simpson Burglary

Matthew Simpson testified that around dusk that same day, he returned

home from grocery shopping, parked his car in his garage, left the garage door

open, and went inside with a load of groceries. As he returned to the garage, his

dog ran out ahead of him and started barking. Simpson then “heard a noise, like

somebody had dropped something” and he saw an individual (whom he identified

later that evening and at trial as Appellant) standing at his tool bench. Simpson

did not know Appellant and did not give him permission to enter his garage.

When Simpson asked Appellant what he was doing, Appellant stated that he

wanted to borrow some tools to fix his lawnmower. Then without taking any of

Simpson’s property, Appellant “walked away very fast.”

The Bonner Burglary

At approximately 7:15 that same evening, Andrea Bonner pulled her car

into her garage. Bonner lived alone, and as she entered her kitchen, she heard

noises like someone was breaking into her home. She screamed, “Get out of my

house,” called 911, returned to her car, backed down the driveway, and waited

for the police. When she reentered her home with the police, Bonner discovered

that someone had entered her home without her permission by breaking her

bathroom window. The intruder’s muddy footprints went from the bathroom down

the hallway to her bedroom doorway, and “you could see where there was a pivot

step where he must have — maybe at the time heard the garage door and turned

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as if to leave.” The evidence indicated that the intruder exited through the front

door, and the key to the front door’s deadbolt was missing.

The Johnson Burglary4

Scott Johnson testified that around 8:00 that same evening, he arrived

home, opened his garage, and found tools and other items strewn around his

garage. Inside his home, several of the doors and windows were opened and

clothes were scattered all over the floor. Johnson called the police, and while

waiting outside, he saw a truck pull up to a house down the street and a man

jump out and run between some houses. When Arlington Police Officer

Stephanie Doak arrived, Johnson told her about the suspicious activity and also

that the house next door to his had been vacant for some time. While they

talked, a man appeared between some nearby houses. When Officer Doak

ordered the man to stop, he fled, and Officer Doak pursued. Meanwhile,

Johnson discovered some of his missing personal property tossed throughout the

neighborhood. Inside the vacant house, officers found a plethora of stolen items

from homes in the neighborhood, including some of Johnson’s property.

The Police Investigation

Officer Doak testified that she responded to Scott Johnson’s 911 call at

approximately 8:20 p.m. As Officer Doak spoke with Johnson and several of his

neighbors, a man came out from between some houses. When one of the

4
The jury acquitted Appellant of this offense.

5
neighbors asked who he was, the man ran in the opposite direction. Due to the

multiple reported burglaries in the area, Officer Doak pursued the suspect while

identifying herself as a police officer and ordering him to stop. The suspect

slowed down long enough to strip off the jacket he was wearing and then ran off

among the houses. Officer Doak lost track of the suspect and radioed to other

officers to set up a perimeter to search for him. Officers eventually located the

suspect—later identified as Appellant—curled up under a workbench in one of

the neighborhood garages. Officer Jesse Lathrop testified that the suspect in the

garage matched the description of the suspect that had evaded Officer Doak.

Officers Doak and Lathrop testified that Officer Lathrop arrested Appellant and

that in patting down Appellant officers found several items on his person,

including a folding knife, drug paraphernalia, and some jewelry. Officer Lathrop

testified that Appellant also had two sets of keys in his pants pocket—two keys

on a single ring marked “kitchen” and a separate single key.5 Officer Doak

testified that she subsequently went to complainant Bonner’s home, and Bonner

identified the separate single key as the one that had been stolen.6

5
Officer Doak testified that in patting down Appellant, officers found several
items including a set of house keys. She also testified that there was a set of
house keys in the jacket Appellant had discarded as he fled.
6
Although Officer Julianne Armendarez lifted two latent fingerprints from
Bonner’s front glass door, the prints did not match Appellant’s known prints.

6
 Officer John Welch testified that he responded to the 911 call regarding the

burglary at Allison and Johnston’s home.7 That same evening, Officer Welch

learned that officers had detained a suspect in the burglaries, and he took Allison

to the suspect’s location. Allison identified Appellant as the person who had

come to his door a couple of hours prior to the burglary. Allison also identified

the set of keys found in Appellant’s pants pocket as being taken from the home.

The police also returned to Allison his stolen black leather jacket, which Appellant

shed during his flight from Officer Doak.

Officer Thomas McCloud testified that he responded to Officer Doak’s

request to establish a perimeter around the South Arlington neighborhood.

Officer McCloud detained a “possible suspect”; however, when this suspect was

presented to homeowner Simpson (after instructing Simpson about identification

protocol), Simpson stated that the suspect was not the intruder in his garage who

claimed to be borrowing tools.8 Officer McCloud subsequently took Simpson to

the location where officers were detaining Appellant, and Simpson identified

Appellant with “a hundred percent” certainty as the intruder in his garage.

7
Although Officer Welch lifted latent fingerprints from certain pieces of
property located inside and outside the home, none of the prints were of
sufficient quality to compare to Appellant’s known fingerprints.
8
That suspect was eventually arrested and charged with possession of
methamphetamines.

7
Appellant’s Evidence

Appellant did not testify, and he did not present a case in chief. On cross-

examination, Appellant’s counsel elicited from Officer Doak that one of the

offense reports listed Appellant’s address as “Homeless.” Officer Doak further

explained, however, that Appellant did not have any identification when he was

arrested but that he said he lived in Haltom City. Appellant’s counsel also elicited

from Officer Doak that Appellant told her he “did lawn work.” In his closing

argument, Appellant’s counsel raised the theory that Appellant had been

homeless, looking for work, and merely picked up the property, not knowing it

was stolen.

Standard of Review

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole

judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.

Ann. art. 38.04 (West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.

8
App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638. Circumstantial evidence is as probative as

direct evidence in establishing an actor’s guilt. Isassi, 330 S.W.3d at 638;

Hooper, 214 S.W.3d at 13.

Applicable Law

A person commits a burglary if, without the effective consent of the owner,

he enters a habitation and intends to commit theft, attempts to commit theft, or

commits theft. See Tex. Penal Code. Ann. § 30.02. A suspect’s identity and

burglarious entry into the habitation may be proven by circumstantial evidence.

See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (identity); Smith v.

State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)

(identity); see also Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App.

[Panel Op.] 1978) (entry); Tabor v. State, 88 S.W.3d 783, 786–87 (Tex. App.—

Tyler 2002, no pet.) (entry). Unexplained or unreasonably explained possession

9
of recently stolen property by the defendant may raise an inference of guilt. 9 See

Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State,

185 S.W.3d 904, 905 (Tex. Crim. App. 2006); see also Chavez v. State, 843

S.W.2d 586, 588 (Tex. Crim. App. 1992) (“This rule of sufficiency is necessarily

based upon a belief that those who steal property usually remain in possession

of it for some time afterwards and that persons acquiring property honestly during

such an interval are typically willing to explain how they came by it.”).

Analysis

Regarding the Allison/Johnston and Bonner burglaries, Appellant contends

that no evidence placed him inside the homes, and he emphasizes that

fingerprints lifted at the scenes did not match his prints. Appellant also contends

that “no evidence specifically identified [him] in possession of any of the property

stolen from the house[s].”10

Within an approximate three-hour period, four homes within a one-mile

radius were burglarized. The same night as the burglaries, Appellant was

wearing (and discarded while in flight from the police) Allison’s stolen leather

9
Mere possession of stolen property does not create a presumption of guilt;
rather, it can support an inference of guilt. Hardesty v. State, 656 S.W.2d 73, 76
(Tex. Crim. App. 1983). An inference is a conclusion reached by considering
other facts and deducing a logical consequence from them. Hooper, 214 S.W.3d
at 16. “[J]uries are permitted to draw multiple reasonable inferences from the
evidence (direct or circumstantial) . . . .” Id.
10
Appellant asserts that “no evidence directly identified the jacket as the
one stolen from the Johnston home” and that nothing specifically identifies the
keys taken off him as the specific keys stolen from the houses.

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jacket.11 After the police found Appellant crouched under a workbench in a

neighborhood garage, homeowner Simpson identified him as the intruder in his

garage earlier that evening. Appellant also possessed house keys that both

Johnston12 and Bonner13 identified as having been stolen from their homes.14

Appellant’s flight from officers and unexplained possession of recently

stolen property in the proximity of the burglaries supports an inference of guilt. 15

11
Allison testified that his black leather motorcycle jacket with a racing
stripe on the sleeve was stolen and that the police returned it to him.
12
Officer Welch testified that Johnston reported a missing key from “inside
of the front door where they always lock the door and leave the key in its place”
and that Johnston’s key was recovered that night. Officer Welch explained that
“[t]here was a group of keys that was taken from the suspect and [Johnston]
identified one of the keys as the one that fit in the door.” Johnston testified that
the deadbolt key to his front door was stolen and that the police returned it to
him.
13
Officer Doak testified that after finding house keys on Appellant’s person,
she “went to one of the previous burglaries and showed her the house keys.
They did belong to her.”
14
To the extent there was conflicting evidence as to whether both sets of
house keys were found in Appellant’s pants pocket or whether one set was found
in his pants pocket and one set was found in the jacket he discarded, we must
presume that the factfinder resolved any conflicting inferences in favor of the
verdict and defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Isassi, 330 S.W.3d at 638.
15
See Hardesty, 656 S.W.2d at 76 (“If a defendant is found in possession
of recently stolen property and at the time of arrest fails to make a reasonable
explanation showing his honest acquisition of the property, the factfinder may
draw an inference of guilt.”); Clark v. State, No. 05-07-01264-CR, 2009 WL
580868, at *2–3 (Tex. App.—Dallas Mar. 9, 2009, no pet.) (not designated for
publication) (“Because he did not make his explanation at the time he was first
called upon directly or circumstantially to do so, we conclude the State was not
required to refute his explanation made for the first time at trial.”).

11
See Poncio, 185 S.W.3d at 905 (“Appellant’s exclusive and unexplained

possession of property recently stolen in a burglary in conjunction with the fact

that he pawned the property very close to the burgled home are sufficient to

support his burglary of a habitation conviction.”); see also Clayton v. State, 235

S.W.3d 772, 780 (Tex. Crim. App. 2007) (holding that flight can give rise to an

inference of guilt). The reasonableness of the explanation given by Appellant’s

counsel at trial—that Appellant found the property—was a fact issue the jury

resolved against him. See generally Havard v. State, 972 S.W.2d 200, 203 (Tex.

App.—Beaumont 1998, no pet.). Despite the lack of fingerprint evidence, the

evidence supports Appellant’s burglary convictions in these two cases. See

Rollerson, 227 S.W.3d at 725 (holding that the defendant’s possession of items

recently stolen in a burglary was legally sufficient evidence to convict him of the

burglary, even though there were no witnesses); see also Rogers v. State, 929

S.W.2d 103, 108 (Tex. App.—Beaumont 1996, no pet.) (sustaining burglary

conviction despite the lack of physical evidence, including fingerprints, linking the

appellant to the burglary of a habitation); Lemons v. State, No. 02-10-00301-CR,

2011 WL 3795266, at *5–6 (Tex. App.—Fort Worth Aug. 25, 2011, no pet.)

(mem. op., not designated for publication) (upholding appellant’s burglary

conviction in part because the police found recently stolen property in his

pockets).

Regarding the Simpson burglary, Appellant asserts that the State failed to

prove both (1) that he entered a “habitation,” because the evidence established

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that he entered Simpson’s garage (which Simpson never described as being

attached to his home) and (2) that he intended to steal the tools because the

evidence established only that he intended to borrow them. A “habitation,” 16

however, includes “each separately secured or occupied portion of the structure”

and “each structure appurtenant to or connected with the structure.” Tex. Penal

Code Ann. 30.01(1)(A), (B). Courts have construed these definitions to include

both attached and unattached garages. See Darby v. State, 960 S.W.2d 370,

371–72 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (holding that under

burglary statute an unattached garage is a “structure appurtenant to” a

residence); Johnson v. State, 844 S.W.2d 872, 874 (Tex. App.—Amarillo 1992,

no pet.) (rejecting contention that garage attached to house did not constitute

habitation). Moreover, in a burglary prosecution, the specific intent to commit

theft may be inferred from the circumstances. See McGee v. State, 774 S.W.2d

229, 234 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1060 (1990); Goodeaux

v. State, 269 S.W.3d 730, 734 (Tex. App.—Beaumont 2008, no pet.). Here, the

jury could reasonably find that Appellant intended to commit theft when he

entered Simpson’s garage without Simpson’s permission at nightfall and then

departed quickly when his efforts were thwarted by Simpson and his dog.17 See

16
“‘Habitation’ means a structure or vehicle that is adapted for the overnight
accommodation of persons . . . .” Tex. Penal Code Ann. § 30.01(1) West 2011.
17
Simpson testified that he found Appellant in his garage at “dusk, I think.
But by the time he walked away it . . . already had gotten dark.”

13
Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (“[T]he presumption

of an intent to commit theft arises from the nonconsensual nighttime entry of a

home or building.”), cert. denied, 541 U.S. 938 (2004); see also McMillian v.

State, 873 S.W.2d 62, 64 (Tex. App.—Tyler 1993, pet. ref’d) (holding that

circumstantial evidence of entry included defendant’s hasty retreat in car from

burglary scene).

Viewing all of the evidence in the light most favorable to the jury’s verdicts,

and deferring to the jury’s authority to draw reasonable inferences from basic

facts to ultimate facts, we conclude that the evidence was sufficient to enable the

jury to rationally find, beyond a reasonable doubt, that Appellant committed each

of the three burglaries. We overrule Appellant’s three points.

Conclusion

Having overruled Appellant’s three points, we affirm the trial court’s

judgments.

ANNE GARDNER
JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 28, 2012

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