Bugge, Donald Paul v. State

Affirmed and Memorandum Opinion filed July 31, 2003 Affirmed and Memorandum Opinion filed July 31, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-01064-CR ____________ DONALD PAUL BUGGE, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________ On Appeal from the 85th District Court Brazos County, Texas Trial Court Cause No. 29,456F-85 __________________________________________ M E M O R A N D U M   O P I N I O N Appellant was convicted by a jury of the felony offense of burglary of a habitation and sentenced to 33 years’ confinement. In challenging the conviction, appellant contends the evidence was legally and factually insufficient to prove he entered the habitation, the trial court erred in holding that appellant was not entitled to a charge on the lesser included offense of theft between $50-$500, and the trial court erred in holding that he was not entitled to a charge on the lesser included offense of criminal trespass to a habitation. We affirm. I. Factual Background On the afternoon of April 18, 2002, Kara Van Meter was pacing through the kitchen of her family home as she talked to a friend on her cordless phone. Through a large front window, she saw a gray van slowly drive by her home. The van was emblazoned with a “BUGGE PLUMBING” logo. Shortly thereafter, she noticed the van had backed into her driveway and parked only a few feet from her own vehicle. Initially, Kara suspected that a plumber had inadvertently parked in her driveway. From inside her home, she stepped into her garage and looked through the open garage door into the driveway. On the other side of her own vehicle, she saw a man whom she later identified as appellant. She asked him if she could assist him; he replied that he wanted to see if her home needed any work. Kara told him that she did not need any plumbing services. After walking around toward the rear of her own vehicle, Kara noticed that appellant was rolling a bicycle toward the back of his van. She recognized it as her husband’s bicycle, which she testified was always parked inside the garage against the wall. According to Kara, appellant remarked that he was “just taking a look at your bike.” Kara then took hold of the bicycle’s handle bars and returned it to the garage. Appellant was later charged by indictment with the felony offense of burglary of a habitation coupled with an enhancement for a previous burglary conviction. After finding appellant guilty, the jury sentenced him to 33 years’ confinement. This appeal ensued. II. Legal and Factual Sufficiency Appellant contends that the evidence was legally and factually insufficient to prove he entered the habitation. When an appellant challenges both the legal and factual sufficiency of the evidence, a reviewing court addresses the legal sufficiency challenge first because an affirmative finding on that issue will result in rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. Nickerson v. State, 69 S .W.3d 661, 668 (Tex. App.—Waco 2002, pet. ref’d). In conducting a legal sufficiency review, an appellate court must view the evidence in the light most favorable to the prosecution and determine if any rational fact finder could have found the crime’s essential elements to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court examines the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, the appellate court may not reverse the fact finder’s verdict on grounds of legal insufficiency. See id. In reviewing for factual sufficiency, an appellate court examines all the evidence without the prism of “in the light most favorable to the prosecution” and sets aside the fact finder’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). However, an appellate court conducting a factual sufficiency review must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Id. at 133. Accordingly, we are only authorized to set aside findings of fact in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. The gravamen of appellant’s sufficiency challenge is that the evidence is legally and factually insufficient to establish that he entered the Van Meters’ garage. Appellant contends the State cannot establish an “entry” without certainty as to the bicycle’s specific location at the relevant time on that afternoon. A person “enters” a habitation if he intrudes any part of his body or any physical object connected with the body. See Tex. Pen. Code § 30.02(b). The State may show entry by circumstantial evidence or inference. See Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978); Garza v. State, 841 S.W.2d 19, 22 (Tex. App.—Dallas 1992, no pet.); Brown v. State, 804 S.W.2d 566, 570 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d). In support of this argument, appellant notes that Kara stated that she “believed” the bicycle was in the garage on the day in question and conceded that she did not actually see appellant enter the garage. When asked by the State if the bicycle was in her garage at the time in question, she replied that she was “almost class=Section3> certain” it was. Appellant seizes upon this alleged uncertainty in Kara’s testimony regarding the bicycle’s precise location on the day in question. In response, the State directs our attention to portions of Kara’s testimony wherein she affirmatively stated that the bicycle was in the garage on that day. Upon being shown Exhibit 7, a photograph of a bicycle, Kara testified: A. That’s my husband’s bike. Q. And was this the bike on April the 18th that was taken? A. Yes. Q. And was it in the garage on April the 18th? A. Yes. Furthermore, during the State’s direct examination of Kara, the following exchange took place: Q. At the point that you noticed [appellant] what direction was he walking with the bike? A. Toward the edge of the driveway. Toward his van. Q. Toward his van. And where had the bike been? A. It’s always parked right next to the door into my house – against the wall - lean[ed] up against the wall by the back door inside the garage. Q. And how many inches was it from your back door? A. Two or three. Q. So it was clearly all the way in the garage? A. Yes. During the State’s redirect examination of Kara, the following exchange took place: Q. Okay. And was the bicycle in the garage? A. Yes. Q. And you had gotten home about what time? A. 3:30 I think. Q. And was the bicycle in the garage? A. Yes. Q. And had your husband between 3:30 and 4:00 come out and taken that bike outside in any way? A. No. Q. In fact, were any of your children’s bikes outside; or was there anything outside the garage? A. No. Additionally, Kara testified she was “almost certain” it was parked inside the garage because her husband routinely left it there upon returning home.[1] Kara testified: It’s always parked there [inside the garage]. My husband drives it into the driveway – or into the garage and gets off of it and just leans it right there up against the wall before he walks in the house. And – it’s always, always there; never anywhere else. When asked what the bicycle’s presence in the garage suggested to her, she replied: That my husband is home. That’s – when I open the garage door with my garage door opener, I know if he’s home or not because I can see the bike there.[2] In support of his argument that Kara’s testimony was insufficient, he directs our attention to the following excerpts of Kara’s testimony: Q. Had you actually seen [appellant] in your garage? A. No. Q. First time you saw him he was outside the garage on the far side of the van? A. Yes. ... Q. Are you telling the jury that you specifically remember that the bicycle was there on that particular day or is it just that that’s the normal place for the bike to be and that’s where you think it was? Can you tell this jury that you remember for sure seeing that bike in that spot on that particular day that afternoon? A. Yes, I believe it was there. Q. You believe it was there? A. Uh-huh. From this allegedly inconsistent testimony, appellant argues that at best it was only probable that the bicycle was in the garage at the relevant time and therefore the evidence is legally and factually insufficient to support his conviction. However, the inconsistencies or conflicts were before the jury, who were the judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982); Hitt v. State, 53 S.W.3d 697, 709 (Tex. App.—Austin 2001, pet. ref’d). Additionally, as the judge of the credibility of the witnesses, the jury can believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Kara’s testimony that she was “almost certain” the bicycle was in the garage does not render the evidence either legally or factually insufficient. See Hawkins v. State, 792 S.W.2d 491, 495 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (finding complainant's testimony regarding recognition of attacker, although equivocal, sufficient to support conviction because “the question of credibility was one for the jury to determine, not an appellate court”). The evidence in the record supports a finding that appellant entered the garage in order to remove the bicycle. Kara’s testimony establishing that her husband customarily placed the bicycle in the garage, coupled with the multiple occasions on which she stated that the bicycle was in the garage on the day in question, is sufficient to establish that appellant had to enter the garage to gain possession of the bicycle. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) (noting that circumstantial evidence, alone, may be sufficient to support a jury verdict); see also Brown, 804 S.W.2d at 570 (finding evidence sufficient to prove theft based in part on complainant’s testimony that he customarily kept his car at a particular location). We find the evidence, taken as a whole, sufficient for a rational trier of fact to conclude that appellant unlawfully entered the Van Meter’s garage, committing burglary. Additionally, the verdict was not so contrary to the great weight of the evidence as to be clearly wrong. Appellant’s first and second points of error are overruled. III. Lesser Included Offense Instructions Appellant maintains that he was entitled to an instruction on the lesser included offenses of theft and criminal trespass to a habitation. Appellant makes this argument based upon his claim that the State failed to establish that he actually entered the garage. If facts are elicited during trial that raise an issue of a lesser included offense and a charge is properly requested, then a charge on the issue must be given. Ross v. State, 861 S.W.2d 870, 877 (Tex. Crim. App. 1992). The Court of Criminal Appeals has established a two-prong test to determine whether a defendant is entitled to a charge on a lesser included offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997); Ford v. State, 38 S.W.3d 836, 842 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). To prevail in his argument that he was entitled to the instruction on the lesser included offenses, appellant must meet the following test: [F]irst, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Skinner, 956 S.W.2d at 543 (quoting Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993)) (emphasis added). In deciding whether the issue of a lesser included offense is raised, we look to all the evidence presented at trial. Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1989). The credibility of the evidence and whether it is controverted or conflicts with other evidence may not be considered. Id. Furthermore, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Skinner, 956 S.W.2d at 543. Rather, there must be some evidence directly germane to a lesser-included offense for the fact-finder to consider before an instruction on a lesser-included offense is warranted. Id. A. Instruction on Theft The State concedes that theft is a lesser included offense of burglary of a habitation.[3] Therefore, we address only the second prong of the test, that is, whether there was some evidence in the record that would permit a rational jury to find that if appellant was guilty, he was guilty only of theft. See Hanson v. State, 55 S.W.3d 681, 698 (Tex. App.—Austin 2001, pet. ref’d). In this case, the elements of proof for burglary are that appellant, without effective consent, entered the garage and committed theft or attempted to commit theft.[4] A person commits a theft if he appropriates property, without the owner’s effective consent, with intent to deprive the owner of the property. Tex. Pen. Code § 31.03. Appellant argues only that the State failed to prove that he entered the garage.[5] He reasons that because Kara was unable to conclusively place the bicycle in the garage at the time of the alleged appropriation, it is some evidence that the bicycle was somewhere other than the garage, thus, entitling him to the instruction. We disagree. Initially, we reiterate our prior finding, that the State’s evidence sufficiently proved appellant entered the garage to gain access to the bicycle. Kara testified that the bicycle was in the garage on the day in question and that it was always parked there. Appellant did not testify otherwise. Indeed, appellant did not present any direct evidence in the case and relies merely on Kara’s supposed equivocation, set forth previously, as evidence that he did not enter the garage. However, “one aspect of a witnesses’ testimony, ‘cannot be plucked out of the record and examined in a vacuum.’” Rodriguez v. State, 90 S.W.3d 340, 368 (Tex. App.—El Paso 2001, pet. ref’d) (quoting Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). We must examine those statements which appellant relies on within the context of all the evidence. Id. Kara testified several times - unequivocally - that the bicycle was in the garage on the day in question and likewise, that it was customarily parked in the garage when her husband was home. Kara’s statements, that she “believed” the bicycle was in the garage, and that she was “almost certain” it was there, do not establish otherwise. Kara did not testify that the bicycle was anywhere other than in the garage. If indeed there was any equivocation in Kara’s testimony, a jury’s disbelief of evidence pertaining to the greater offense is not enough to warrant submission of an instruction on a lesser included offense. See Skinner, 956 S.W.2d at 543. Thus, Kara’s statements do not entitle appellant to an instruction on a lesser included offense. Because Kara affirmatively stated that the bicycle was in the garage on the day in question and there was no direct evidence that appellant did not enter the garage to gain possession of the bicycle, the trial court did not err in refusing appellant’s request for a lesser included offense instruction on theft. We overrule appellant’s point of error on this issue. B. Instruction on Criminal Trespass Appellant also contends that the trial court erred in holding that he was not entitled to an instruction on the lesser included offense of criminal trespass of a habitation. The State argues that appellant failed to preserve this argument for our review. However, assuming without deciding that appellant properly preserved the issue,[6] we conclude that appellant’s assertion is without merit. Criminal trespass can be a lesser included offense of burglary of a habitation. See White v. State, 698 S.W.2d 494, 495 (Tex. App.—Corpus Christi 1985, no pet.); see also Daniels v. State, 633 S.W.2d 899, 900 (Tex. Crim. App. 1982). The determination must be made on a case-by-case basis. Bui v. State, 964 S.W.2d 335, 340 (Tex. App.—Texarkana 1998, pet. ref’d). However, here the State concedes that appellant has satisfied the first step of the lesser included offense test and we proceed to the second prong. In a burglary case where an instruction on criminal trespass is at issue, the evidence must raise an issue that the defendant entered the premises unlawfully, but without the intent to commit a felony or theft. Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1976); White, 698 S.W.2d at 496. In requesting the criminal trespass instruction, appellant essentially argues that the taking of the bicycle was without intent to permanently deprive and, therefore, was a trespass. However, there is no evidence in the record that, if guilty, appellant is guilty only of the offense of criminal trespass. Wyble v. State, 764 S.W.2d 927, 930 (Tex. App.—Amarillo 1989, pet. ref’d). As Kara testified, appellant’s van was driving slowly down her street, at a rate much slower than other vehicles. Appellant then backed his van into the Van Meter’s driveway, despite the fact that the Van Meters had not requested any services from Bugge Plumbing. Appellant was seen walking away from the building with property belonging to the Van Meters. Kara testified that he was rolling the bicycle away from the garage and towards his van. Based on this evidence, the assertion that “the jury could find that he wasn’t actually stealing the bike but he had entered the garage without her permission” does not suggest that appellant would be guilty only of criminal trespass. Taken together, this would not permit a jury rationally to find that appellant was guilty only of the lesser offense. See Skinner, 956 S.W.2d at 543–44. Accordingly, the trial court did not err by refusing to give the criminal trespass instruction, and appellant’s fourth point of error is overruled. Conclusion For the foregoing reasons, the judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed July 31, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b). [1] The State contends that Kara’s testimony illustrates her husband’s habit of placing the bicycle inside the garage. Evidence of the habit of a person is relevant to prove the conduct of the person on a particular occasion was in conformity with the habit. Tex. R. Evid. 406. However, Rule 406 speaks to the admissibility, not the sufficiency, of evidence. [2] Kara also testified that her husband was home during the incident. [3] We acknowledge that the law regarding theft as a lesser included offense of burglary is somewhat unclear. Compare Garcia v. State, 571 S.W.2d 896, 899 (Tex. Crim. App. [Panel Op.] 1978) (noting that burglary under section 30.02(a)(3) can include the commission of theft) and Martinez v. State, 635 S.W.2d 629, 630, 634 (Tex. App.—Austin 1982, pet. ref’d) (finding that theft was a lesser included offense of burglary), with Ex parte Sewell, 606 S.W.2d 924, 924 (Tex. Crim. App. 1980) (“Where theft is not charged in a burglary indictment it is not the lesser included offense thereof”) and Steward v. State, 830 S.W.2d 771, 774 (Tex. App.—Houston [14th Dist.]1992, no pet.) (same). See also George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice & Procedure § 20.201a (2001 & Supp. 2003) (noting that at least one appellate court has erroneously suggested that “the degree of specificity of the charging instrument may affect the availability at trial of lesser included offenses.”). However, because the State concedes that theft is a lesser included offense and the indictment charging appellant alleges burglary by commission of theft, we assume without deciding that under the circumstances of this case theft is a lesser included offense of burglary. [4] A person commits burglary of a habitation if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony, theft, or an assault. Tex. Pen. Code § 30.02(a)(3). [5] Kara testified that appellant had entered the garage without her consent and had testified regarding the value of the bicycle. [6] Assuming we found error in the trial court’s ruling regarding the requested instruction, we would then be obligated to address the preservation of error issue to properly conduct a harm analysis. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998).