Leonard Dewayne Polk v. State

Opinion issued May 24, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-01135-CR __________ LEONARD POLK, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1026524 MEMORANDUM OPINION A jury found appellant, Leonard Polk, guilty of the offense of burglary of a habitation, (1) and, after appellant pleaded true to the allegation in one enhancement paragraph that he had a prior felony conviction, the trial court assessed his punishment at confinement for life. In his sole point of error, appellant contends that the evidence is factually insufficient to support his conviction. We affirm. Factual and Procedural Background Manuel Vara, the complainant, testified that he kept his collection of coins and paper money and some jewelry in a safe in his home office, a metal box in his desk, and a box on a closet shelf. On April 13, 2005, he and his wife left their home at 7:30 a.m. for a hospital appointment after everything had been "locked and close." When they returned home after lunch, Vara did not notice anything to indicate that someone had been in the house. However, at approximately 2:00 p.m., he noticed that a window to his home was wide open. Vara ran into his home office and saw that the safe was open and empty. He then opened his desk drawer and saw that the metal box was empty. Vara called for emergency assistance and then called his daughter, Virginia Delacruz. When a police officer arrived, he told Vara that it might be an "inside job," but Vara later learned of a different suspect. Vara explained that he did not know appellant and did not give him permission to enter his home. Vara noted that he had told his home-health nurse he would not be home until after 2:00 p.m. that day. He conceded he had left the safe unlocked on the night before the burglary. On cross-examination, Vara confirmed that when he left the house, every room, door, and window had been locked, including the window that he later discovered had been opened. Vara explained that because that window had not been broken, someone had to have unlatched it from the inside to open it. Vara agreed that this was the only time that he had left the safe unlocked, but explained that the door to the safe had been closed. Other than the desk being disturbed, the window screen being removed, the window being opened, and a chair being moved, everything else in the house was in order. Virginia Delacruz, the complainant's daughter, testified that the home-health nurses did not have keys to the house. After Vara told her that his house had been burglarized, she went to Vara's house. Delacruz agreed that nothing else inside the house had been disturbed and that even the home office was clean, as if the suspect "knew exactly what to do." Delacruz identified pieces of Vara's collection that were later recovered. Delacruz stated that she did know appellant, and she could not think of any reason why appellant would be in Vara's house. On cross-examination, Delacruz agreed that the coin collection was heavy and would have taken several hours to move. Houston Police Officer Joe Falco testified that he was dispatched to Vara's home on April 13, 2005, to take latent fingerprints. Falco was able to lift prints off a "small security box" inside Vara's desk. Officer W. Stairhime, Deputy Administrator for the City of Houston and a latent fingerprint examiner, testified that during his initial exam on April 18, 2005, he determined that the prints lifted by Falco were not suitable for identification purposes. Stairhime subsequently reexamined those latent prints for comparison to the prints of two possible suspects, but the latent prints and the two comparison prints did not match. He then asked a co-worker to enter the latent prints into the Automated Fingerprint Identification System ("AFIS"), a computerized database of thousands of fingerprints maintained at the Houston Police Department that has the capability of generating a candidate list for matches. Stairhime explained that, in general, after a list is generated, "it's up to the examiner to look at each one of these candidates on this list to determine whether or not you have a known print that looks good enough to the unknown print . . . to go pull the known inked prints and do a side by side comparison." After he received the candidate list in this case, Stairhime pulled the "known print . . . that was singled out and sat down and did a side-by-side comparison." During his side-by-side comparison, Stairhime found a match between appellant's known prints and the latent prints taken from inside Vara's home. On cross-examination, Stairhime conceded that AFIS generates a candidate list in descending order of probability and that appellant was number twenty-four on the candidate list. However, Stairhime explained that it is standard practice to request a list of thirty candidates to perform manual comparisons of those candidates. In regard to appellant's prints, there were nine matching characteristics between the known prints and the latent prints recovered from Vara's home. Stairhime further explained that seven characteristics are normally acceptable, but that if there are less than ten characteristics, he is required to have more than one person look at it and agree with him before he can make an identification. Three other colleagues looked at the latent prints and agreed that the latent prints matched appellant's known prints. Houston Police Officer William Bush testified that during his investigation of the burglary of Vara's house, he interviewed Vara, Delacruz, other family members, and Vara's home health care workers. After Bush cleared the family members and health care workers in his investigation, he went to appellant's address and left his business card with appellant's girlfriend. Appellant called Bush soon thereafter, and Bush tape recorded a portion of this conversation, which was introduced into evidence. Bush noted that during this conversation, appellant volunteered that he had bought eight or nine coin books "from a crack head" at a store down the street from his apartment while riding a mountain bike. Bush, who had since recovered some of the books, noted that they were heavy. Bush obtained a description of the person who allegedly sold the coin books to appellant, but he was not able to match anyone to that description. Bush then went to the coin shop where appellant told him that he had sold the coins. Bush spoke with the shop owner, who told him that he had purchased coins matching Vara's description within a few days after the burglary. Vara identified these coins as his. Bush also recovered Vara's paper money and coins at a bank located inside a grocery store in Vara's neighborhood. Finally, Bush recovered some of Vara's paper money and coins from appellant's girlfriend. Bush explained that Vara's house, appellant's apartment, and the bank were all within walking distance. Jeffrey Todd, the coin shop owner, testified that he had purchased coins from appellant on April 14 and April 19, 2005. Todd stated that appellant provided identification during the purchases. Elaine Butler, a bank branch manager, testified that she exchanged coins and paper money with appellant in April 2005 and that she had since returned those items to Officer Bush. Factual Sufficiency In his sole point of error, appellant argues that the evidence is factually insufficient to support his conviction because the only evidence connecting appellant to the offense is "suspect" and "does not prove entry." Appellant asserts that his actions "are those of a man who had done nothing wrong" in that he did not conceal his identity while selling the coins. In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the jury's verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that the jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation, or a building not then open to the public, and commits or attempts to commit a theft. Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). Here, Vara, the complainant, testified that after returning home, he noticed one of the windows to his house had been opened. He then discovered that his coin collection had been taken from a safe and metal box in his home office. Officer Falco testified that he was able to lift latent fingerprints off the metal box located inside the complainant's desk. Although Officer Stairhime conceded that he had initially determined that the fingerprints were unsuitable, a candidate list of possible matches was generated after the prints were entered into the AFIS system. Stairhime then conducted a manual comparison, and appellant's known prints matched the latent prints taken from inside Vara's home. Although Stairhime conceded that appellant was listed as number twenty-four on the candidate list and that the list is produced in "descending order of probability," Stairhime explained that it was standard practice to request a list of thirty candidates because a suspect "is usually within the top 30" and that officers perform manual comparisons on all of those candidates. Stairhime stated that there were nine matching characteristics between appellant's known prints and the prints obtained at Vara's home and that three other colleagues confirmed his findings. Officer Bush then spoke with appellant, who volunteered that he had bought eight or nine coin books "from a crack head," who Bush was unable to locate. Bush met with the coin shop owner, who confirmed that he had purchased Vara's coins from appellant within a few days of the burglary. Bush also recovered some of Vara's paper money and coins at a bank in appellant's neighborhood and from appellant's girlfriend. Bush noted that Vara's house, appellant's apartment, and the bank were all within walking distance. Todd, the shop owner, testified that appellant sold him Vara's coins and Butler, the bank branch manager, testified that appellant exchanged Vara's coins and money at her bank in April 2005. Appellant argues that the evidence is factually insufficient because the circumstances suggest that the burglary was an "inside job" and that it is "quite possible" that appellant touched the box when he purchased the coins. He asserts that the box was returned to Vara's home by the insider while Vara remained away from his home. Although there is evidence indicating that Officer Bush initially treated the burglary as an "inside job," Bush testified that he had cleared family members and Vara's home health workers after questioning them. Delacruz also testified that the home health workers did not have keys to Vara's home. Furthermore, no evidence in the record supports appellant's assertion that he touched the metal box while it was located outside the home and that the box had been returned to Vara's home prior to its discovery. In conducting our factual sufficiency review, we note that the jury, as the sole judge of the credibility of witnesses and the weight to be given to their testimony, was entitled to resolve any credibility issues against appellant. See Johnson, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Robles v. State, 104 S.W.3d 649, 652 (Tex. App.--Houston [1st Dist.] 2003, no pet.). We conclude, viewing the evidence neutrally, that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction. See, e.g., Kiser v. State, 893 S.W.2d 277, 286 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (stating that fingerprint evidence alone is sufficient to sustain conviction if record shows that fingerprints were necessarily made contemporaneously with offense); Villarreal v. State, 79 S.W.3d 806, 811 (Tex. App.--Corpus Christi 2002, pet. ref'd) (stating that "fingerprint evidence alone will be sufficient to sustain a conviction if the evidence shows that the prints were necessarily made at the time of the burglary"). We overrule appellant's sole issue. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Taft, Jennings, and Alcala. Do not publish. See Tex. R. App. P. 47.2(b). 1. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003).