Miller, Adrian Arnell v. State

Affirmed and Memorandum Opinion filed May 5, 2005 Affirmed and Memorandum Opinion filed May 5, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00322-CR ____________ ADRIAN ARNELL MILLER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 942,835 M E M O R A N D U M   O P I N I O N Appellant Adrian Arnell Miller was convicted by a jury of burglary of a habitation, and the trial court sentenced him to thirty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant contends the evidence is legally and factually insufficient to establish that he entered the complainant’s residence. For the reasons stated below, we affirm. Factual Background On January 24, 2003, Matthew Dilick, the owner of a real estate development and construction company, visited a recently-purchased apartment complex. As he stood near the entrance to the complex with two co-workers, he saw appellant walk by and enter the complex. Dilick later saw appellant leaving the general area of the complainant’s apartment carrying a red suitcase. At around the same time, the complainant, Stephen Luquette, arrived at the complex. As he drove in, he noticed appellant loading a “reddish maroon” bag into a car. Luquette drove into the carport to park, and from there could see that the front door to his apartment was open. Walking to his apartment, he saw that the front door had been kicked in and the patio door also was open. Inside the apartment, Luquette saw that two computers were missing and two pieces of a matching three-piece luggage set were on the floor with computer parts or software inside them. The main piece of the luggage set was missing. Luquette ran out of his apartment yelling “I’ve been robbed.” Minutes later, he realized that the missing piece of luggage was the bag he had seen appellant putting in the car. Luquette ran towards Dilick and his co-workers and asked if they had seen anyone suspicious around. They pointed to appellant, who had loaded the suitcase into the car. Luquette yelled at appellant and ran towards him. Appellant got in the car and began to drive away, when Luquette jumped on the hood of the moving car. After a few seconds, Luquette jumped off and wrote down the car’s license plate number. Dilick and his co-workers also recorded part of the license plate number. Based on the license plate numbers, Sergeant Wehr of the Houston Police Department identified appellant as a suspect. Wehr prepared a photo spread containing appellant’s photo and showed it to Dilick. Although Dilick stated that appellant resembled the man he saw in the apartment complex, he was not able to positively identify him. Luquette positively identified appellant when shown the photo spread. Both Luquette and Dilick positively identified appellant in court. Standards of Review When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When considering factual sufficiency, we must examine the jury’s weighing of the evidence and review the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 6 (Tex. Crim. App. 2000) (en banc). We must determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We may set aside a verdict on factual sufficiency grounds only when the verdict is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000)(en banc). Analysis of Appellant’s Issues To support appellant’s conviction for burglary of a habitation, the State was required to prove that appellant intentionally and knowingly entered the complainant’s habitation with the intent to commit theft. See Tex. Pen. Code § 30.02(a). The State may prove entry through circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978); Draper v. State, 681 S.W.2d 175, 177 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d). When there is independent evidence of a burglary, the unexplained personal possession of recently stolen property will support an inference that the possessor is guilty of the offense in which the property was stolen. Harris v. State, 656 S.W.2d 481, 483 (Tex. Crim. App. 1983) (en banc); Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). Once the permissible inference arises, sufficiency of the evidence must still be examined according to applicable evidentiary standards of appellate review, because the inference is not conclusive. Hardesty, 656 S.W.2d at 77. Appellant contends the evidence is legally and factually insufficient to prove that he entered the habitation. He points out that no witnesses placed him in the complainant’s residence, and the only item of property seen in his hands was “never strongly identified” as the complainant’s. Appellant also asserts that other unknown males who were also in the area at the time could have taken the suitcase and appellant merely found it. We find that the totality of the circumstantial evidence establishes entry. Luquette, the complainant, testified that as he drove into the apartment complex, he noticed appellant putting a “reddish maroon” bag in a car. Luquette then arrived at his apartment to find that the front door of his residence had been broken down and he had been robbed. He testified that two pieces of a matching three-piece luggage set he owned were on the floor, and he realized he had seen appellant with the main suitcase from the set. Dilick also saw appellant leaving the area of Luquette’s apartment carrying a red suitcase and loading it into a car. Moreover, appellant then fled, failing to stop even when Luquette jumped atop the hood of the car he was driving. Appellant offered no explanation for his actions. This evidence is legally and factually sufficient to permit a reasonable jury to find that appellant entered Luquette’s residence and stole his suitcase. See Draper, 681 S.W.2d at 177; Medrano v. State, 658 S.W.2d 787, 790 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d). Appellant acknowledges that entry may be proved by circumstantial evidence, but he contends that the State cannot successfully rely upon any inference of guilt based on the unexplained possession of recently stolen property because it cannot satisfy the requirements that the possession (1) is unexplained, and (2) involved a distinct and conscious assertion of a right to the property. See Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984) (en banc) (holding that to warrant an inference of guilt based on the possession of stolen property, the possession must be personal, recent, unexplained, and the defendant must assert a distinct and conscious assertion of a right to the property). First, appellant contends that, because he gave no statement at or near the time of the incident and did not testify at trial, any argument that his possession was unexplained amounts to impermissibly using his silence against him in violation of the Fifth Amendment to the United States Constitution. However, the inference that may be drawn from possession unless a defendant provides some explanation after the arrest has been found not to violate due process or the privilege against self‑incrimination.[1] See Barnes v. United States, 412 U.S. 837, 846–47 (1973); Hall v. State, 490 S.W.2d 589, 592 (Tex. Crim. App.1973). Appellant cites no authority in support of his contention otherwise. Therefore, we decline to find that application of this inference violates his Fifth Amendment rights. Second, appellant argues that, because the evidence showed “at most” that he was merely placing the suitcase in his vehicle, any assertion by the State that his possession of the property involved a “distinct and conscious assertion of a right to the property” would effectively render the phrase meaningless and redundant. However, we disagree with appellant’s characterization of the evidence. Appellant’s conviction does not rest solely on the evidence that he was seen placing the suitcase in the car, but on the totality of the circumstantial evidence discussed above, including the evidence of his determined flight from the scene. See Colella v. State, 915 S.W.2d 834, 839 n.7 (Tex. Crim. App. 1995) (en banc) (“We have repeatedly held that flight is evidence of a circumstance from which an inference of guilt may be drawn.”). Moreover, appellant’s reliance on Sutherlin is misplaced. In that case, the Court of Criminal Appeals held that the evidence was insufficient to support a theft conviction when it established only that the defendant was found in possession of the stolen property some five months after the theft. Sutherlin, 682 S.W.2d at 549. The court held that, because the defendant’s possession was not shown to have been recent possession, it could not apply the inference of guilt permissible from a defendant’s recent, unexplained possession of stolen property. Id. The court also noted that remote possession of stolen property unaccompanied by other incriminating facts was insufficient to support a theft conviction. Id. at 550. In contrast, appellant’s possession of the property was neither remote nor unaccompanied by other incriminating facts. Appellant’s issues are overruled. Conclusion The trial court’s judgment is affirmed. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed May 5, 2005. Panel consists of Chief Justice Hedges and Justices Fowler and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] Appellant erroneously refers to this inference of guilt as a “presumption.” See Hardesty, 656 S.W.2d at 76–77.