Richardson, Dwayne Lee v. State

Affirmed and Memorandum Opinion filed April 20, 2006 Affirmed and Memorandum Opinion filed April 20, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-00764-CR ____________ DWAYNE LEE RICHARDSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Court at Law No. 5 Harris County, Texas Trial Court Cause No. 1178787 M E M O R A N D U M  O P I N I O N Challenging his conviction for burglary of a vehicle, appellant Dwayne Lee Richardson contends that the evidence is legally and factually insufficient to support his conviction. We affirm. I. Factual and Procedural Background On June 17, 2003, shortly before 10:00 p.m., Christina Roberts saw two unfamiliar men, whom she later identified as appellant and Larry Fontenot, in the parking lot of her apartment complex. The men appeared to be looking in windows of various cars parked in the lot. Roberts watched the men for about ten minutes and then called 911. As she was talking to the 911 operator, a car passed by the two men and they ducked down behind a trash dumpster. Shortly thereafter, Roberts heard a car alarm activate and saw the men run away from a black Hyundai Elantra automobile. One of them appeared to be carrying something in his hand. Roberts remained on the phone until Officer Eric Lopez with the Harris County Sheriff=s Department arrived about five minutes later. The Hyundai Elantra had been burglarized. Officer Lopez drove around the complex looking for the suspects and eventually saw two men who matched the description Roberts had provided. By the time Officer Lopez drove up to the men, they already were walking across the grass toward the exit. Officer Lopez summoned the two men, and after some hesitation, they complied. Officer Eddie Pavloski arrived on the scene to assist Officer Lopez. Officer Pavloski asked Fontenot whether he lived in the apartment complex. Fontenot stated that he did not, but explained that he had followed a friend into the complex in order to meet some girls. Fontenot, appearing quite nervous and stuttering while he talked, could not identify these girls nor could he give Officer Lopez any apartment numbers. Despite the warm June weather, Fontenot had a pair of gloves in his front pocket . Officer Pavloski interviewed appellant, who also claimed that he and Fontenot were at the apartment complex to visit a friend. However, appellant did not mention following anyone into the complex nor did he mention any girls. Like Fontenot, appellant appeared very nervous. Appellant was sweating profusely during his interview with the officers. Virginia Whiteside, a resident of the apartment complex, and her sister both owned Hyundai Elantra vehicles. Whiteside=s sister was out of town, but Whiteside had started her sister=s car around 6:00 p.m. to keep the engine lubricated. At this time, there was no damage to the car. The officers came to Whiteside=s apartment around 10:30 p.m. to inform her that the car had been burglarized. The front passenger-side window was completely broken and the dashboard had been ripped out. The CD player and various CDs were missing, which were later found near some hedges in close proximity to where Officer Lopez first detained appellant and Fontenot. Appellant was charged by information with the offense of burglary of a vehicle. Appellant pleaded not guilty. On February 13, 2004, appellant=s jury trial commenced, but the jury could not reach an unanimous verdict. On July 21, 2004, the case was tried again. Whiteside, Roberts, and the arresting officers testified for the State. Appellant=s only witness at trial was his wife, who testified that on the date in question, appellant left for work around 7:00 p.m. and later called her from jail. The second jury trial resulted in an unanimous verdict of guilty of burglary of a vehicle with the intent to commit theft. Appellant was sentenced to one year confinement in the Harris County jail, and assessed a fine of $4,000.00. II. Issues Presented Appellant asserts two issues on appeal: (1) The evidence is legally insufficient to support his conviction because the essential element of Abreaking@ or Aentering@ a vehicle was not shown beyond a reasonable doubt. (2) The evidence is factually insufficient to support his conviction of burglary with the intent to commit theft.[1] III. Analysis 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). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellants= 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, Ais 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. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire 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). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant complains that the evidence is both legally and factually insufficient to prove that he committed burglary of a vehicle with the intent to commit theft. More specifically, he contends that the evidence does not prove the essential elements of Abreaking@ or Aentering@ a vehicle because Roberts did not actually see him break into the vehicle.[2] A person commits the offense of burglary of a motor vehicle if, without the effective consent of the owner, that person breaks into or enters a vehicle with the intent to commit any felony or theft. Tex. Penal Code Ann. ' 30.04(a) (Vernon Supp. 2005). In a burglary prosecution, intent to commit theft may be inferred from the circumstances. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986); Coleman v. State, 832 S.W.2d 409, 413 (Tex. App.BHouston [1st Dist.] 1992, pet. ref=d) (specific intent to burglarize motor vehicle can be inferred from circumstances). The jury is exclusively empowered to determine the issue of intent, and the events of a burglary may imply the intent with which the burglar entered. Moreno, 702 S.W.2d at 641; Joseph v. State, 679 S.W.2d 728, 730 (Tex. App.BHouston [1st Dist.] 1984, no pet.). Furthermore, property need not be taken for proof of intent to commit theft to be sufficient. Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App. 1981). A person Aenters@ a vehicle if he intrudes any part of his body, or any physical object connected with the body. Tex. Pen. Code Ann. ' 30.04 (b) (Vernon Supp. 2005). Proof of entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976); Boudreaux v. State, 757 S.W.2d 139, 147 (Tex. App.BHouston [1st Dist.] 1988, pet. ref=d). Appellant contends that the evidence is factually and legally insufficient to show that he entered the vehicle because no one actually saw him enter the vehicle, his fingerprints were not found on the vehicle or the stolen property that was later recovered, and he was not found in possession of any stolen property. We conclude that there is sufficient circumstantial and direct evidence to show that appellant entered the vehicle in question with the intent to commit theft. Appellant was seen canvassing the cars in the parking lot and carefully studying the Elantra automobile that was burglarized shortly thereafter. Roberts heard the car alarm activate and saw appellant and his companion walking away from the car around the same time. The passenger side window was smashed and a CD player and various CDs were missing, all of which were found near the hedges where appellant was detained by the police. Appellant and his companion were both very nervous and gave conflicting explanations as to their presence at the apartment complex. And appellant=s companion was in possession of a pair gloves, an unnecessary and unusual accouterment in Houston=s warm June weather. After reviewing the record, we conclude that the evidence is both legally and factually sufficient to support appellant=s conviction. Viewing the evidence in a light most favorable to the verdict, we conclude a jury rationally could have found beyond a reasonable doubt that appellant committed burglary of a vehicle with the intent to commit theft. Viewing the evidence in a neutral light, we conclude the evidence is not too weak, nor the contrary evidence too strong, to support a finding of guilt beyond a reasonable doubt. Accordingly, we overrule appellant=s two issues. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed April 20, 2006. Panel consists of Justices Hudson, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Because of the similarity of these two issues, we address them together. [2] Appellant relies on the same arguments and testimony in connection with both sufficiency challenges.