Lionel Newman v. State

Affirmed and Memorandum Opinion filed May 17, 2007 Affirmed and Memorandum Opinion filed May 17, 2007. In The Fourteenth Court of Appeals _______________ NO. 14-05-01125-CR _______________ LIONEL NEWMAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1043620 M E M O R A N D U M  O P I N I O N A jury found appellant, Lionel Newman, guilty of burglary of a habitation, and the trial court sentenced him to thirty-five years= confinement. In two issues, appellant contends (1) the evidence is legally and factually insufficient to support his conviction and (2) the trial court erred by denying his requested jury instruction on burglary of a building. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background On the morning of May 6, 2000, Dr. Victor Zurita, complainant, awoke when he heard the sound of glass breaking on the first floor of his home. He went downstairs to investigate. He saw an African-American man entering his house through a broken window with one arm and one leg inside the house. Zurita yelled at him, AGet away.@ The man took off running through the garage. Zurita heard a car drive away. Zurita woke up his wife and sister-in-law who were also sleeping in the house. His wife called the police. Houston Police Officer Steven Derrick arrived twenty minutes later. Zurita went with Officer Derrick to search the back of the house, where the broken window was located. They observed that the garage door was open and saw an old computer, monitor, and large toy car neatly stacked outside the garage. Zurita testified that the garage door was closed and unlocked the night before and the computer, monitor, and toy car were inside the garage. Officer Derrick observed fingerprints on the broken window. Officer John Gray, a Houston police fingerprint analyst, came to the scene to recover the prints on the glass from the broken window. Officer Rafael Saldiver, a latent print examiner for the Houston police, reviewed the prints and determined they matched appellant=s fingerprints. II. Sufficiency of the Evidence In his first issue, appellant contends the evidence is legally and factually insufficient. Specifically, appellant contends (1) the witness did not positively identify appellant at trial, and (2) the State did not prove how appellant=s fingerprints were left on complainant=s broken window. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a 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 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). In a factual sufficiency review, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)). Before we may reverse for factual insufficiency, we must first be able to conclude, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). When reviewing evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). We do not re-evaluate the credibility of witnesses or the weight of evidence, and will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). Finally, we must discuss the most important and relevant evidence that supports the appellant=s appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). A person commits burglary of a habitation if, without the consent of the owner, the person enters the habitation and commits or attempts to commit a felony, theft, or assault. Tex. Penal Code Ann. ' 30.02(a)(3) (Vernon 2003). AEnter@ is defined as intruding with any part of the body. Tex. Penal Code Ann. ' 30.02(b)(1) (Vernon 2003). A person commits theft if he appropriates property without the owner=s effective consent with intent to deprive the owner of the property. Tex. Penal Code Ann. ' 31.03(a), (b)(1) (Vernon Supp. 2006). We first address appellant=s argument regarding the fingerprints. Appellant contends the evidence is insufficient because the State did not prove how appellant=s fingerprints appeared on the broken glass at the point of entry to Zurita=s home. We disagree. The presence of fingerprints alone is sufficient to prove identity of a burglar if the evidence shows that the fingerprints were made at the time of the burglary. Nelson v. State, 505 S.W.2d 271, 273 (Tex. Crim. App. 1974); Washington v. State, 721 S.W.2d 502, 504 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d). When evaluating the sufficiency of fingerprint evidence, one of the most important factors to be considered is the extent to which the fingerprinted object was accessible to the defendant. Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. 1980). For example, whether the circumstances negate the possibility that the defendant may have touched the object at some other time. Id. Moreover, whether fingerprint evidence is sufficient to sustain a conviction depends on the facts and circumstances of each case. Id. In this case, the broken window faced a fenced backyard. The burglar entered and exited the backyard through Zurita=s closed garage. This window was not particularly accessible to the public, nor was it located on public land. In Nelson, the Court of Criminal Appeals upheld the use of the fingerprint identification as the only means of identifying the defendant when prints were found on a glass window near the point of entry in a public building. 505 S.W.2d at 273. The court considered the fact that the store manager had never seen the defendant on the premises and there was no evidence that the defendant had ever been there before the burglary. Id. Similarly, Zurita testified he had never seen appellant before the burglary. Further, there is no evidence in the record suggesting appellant had ever been to Zurita=s residence much less to his private, enclosed backyard before the burglary. Appellant contends a fingerprint outside of a habitation alone is insufficient evidence to support a conviction and cites Hood v. State, 860 S.W.2d 931, 934 (Tex. App.CTexarkana 1993, no pet.) and McClesky v. State, 924 S.W.2d 427, 428 (Tex. App.CBeaumont 1996, no pet.). In Hood, the complainant=s home was burglarized while the complainant was out of town. 860 S.W.2d at 933. The defendant had previously performed maintenance work at the complainant=s home where the burglary occurred. Id. at 934. As a result, the court reasoned that the fingerprint only provided some evidence that the defendant Amay have been at the home at some time@ but it did not in itself establish that he committed the burglary. Id. In addition, the defendant=s girlfriend had confessed to and was convicted of the burlgary and claimed to have committed the burglary without the defendant. Id. The court held the fingerprint alone was insufficient to prove entry into the home because no evidence placed the defendant in the home or in possession of the stolen property. Id. at 937. Hood is distinguishable because in this case there is no evidence in the record that appellant had any prior connection to Zurita=s residence. No one saw him near Zurita=s home before the burglary. No other person has been implicated in the burglary. Moreover, the burglar was observed by Zurita as he was entering Zurita=s home through the broken window. Appellant also cites McCleskey v. State, in support of his argument that a fingerprint alone, outside of a habitation, is insufficient to support a conviction. 924 S.W.2d 427. However, the McCleskey court noted that numerous courts have concluded the evidence was sufficient where a defendant=s Afingerprints were found at the point of entry and witness= testimony placed a strange person inside habitation at such a time as indicated the prints were necessarily made at the time of the burglary.@ Id. at 429 (citing Brown v. State, 881 S.W.2d 582 (Tex. App.CCorpus Christi 1994, no pet.); Mathew v. State, 839 S.W.2d 110 (Tex. App.CCorpus Christi 1992, no pet.); Koster v. State, 773 S.W.2d 763 (Tex. App.CBeaumont 1989, pet. ref=d); Nguyen v. State, 783 S.W.2d 1 (Tex. App.CDallas 1989, no pet.); Servin v. State, 745 S.W.2d 40 (Tex. App.CHouston [14th Dist.] 1987, no pet.); Washington, 721 S.W.2d at 502). In this case, as in the cases cited by the McCleskey court, Zurita=s witness testimony placed a Astrange person@ attempting to enter his home through the broken window from which the prints were recovered. Specifically, Zurita testified that he saw the burglar=s head. The burglar had one arm and one leg inside the house. Appellant also cites Blevins v. State to support his arguments regarding sufficiency of fingerprint evidence. 6 S.W.3d 566 (Tex. App.CTyler 1999, pet. ref=d). In Blevins, fingerprints were found on the inside and outside of a broken window at the point of entry. Id. at 569. The fingerprint analyst did not testify whether the readable fingerprints were found on the inside or the outside of the window. Id. The court found the fingerprints alone were not sufficient to support a conviction because there was no evidence showing the prints were necessarily made at the time of the burglary. Id. at 570. Moreover, the Blevins court specifically explained, A[t]he majority=s opinion today does not state that a conviction for burglary cannot be upheld unless the defendant=s fingerprints are found inside the habitation.@ Id. at 569 (emphasis added). Here, in addition to observing the burglar entering through the window at the time of the burglary, Zurita testified that he heard glass break three times before he went downstairs. The window frame had been damaged and there were pry marks on the window. Officer Gray, the fingerprint analyst who recovered the fingerprints at the scene, testified that it was his opinion the fingerprints were left by someone trying to remove the glass out of the broken window because the fingerprints were left in a Avery clean, neat manner, as if someone were to break a piece of glass out . . . and set it down near the point of entry.@ He also noted that the fingerprints were Aincredibly clear@ and that he normally does not find prints as clear as these. Officer Saldiver, the latent print examiner, testified as to the identification procedure and that the latent prints recovered by Officer Gray belonged to appellant. Accordingly, we find the fingerprint evidence sufficient to support appellant=s conviction. We next address appellant=s argument regarding the in-court identification. Appellant contends the evidence is insufficient because Zurita could not positively identify appellant during the trial. Specifically, at trial Zurita said he thought appellant was the burglar but then noted, AI am not quite sure because it was not totally clear. It was still a little dark.@ The State may prove identity by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). A witness=s failure to make an in-court identification only goes to the weight and credibility of the witness=s testimony for the jury to consider. Id. Moreover, if other evidence shows that a defendant was the perpetrator of a criminal offense, the complainant=s failure to positively identify the defendant in court does not render the verdict improper. Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d). In this case, appellant=s fingerprints were found on the broken glass at the point of entry into the habitation. As we previously explained, the presence of the fingerprints are sufficient evidence of appellant=s commission of the burglary. The fingerprints are Aother evidence@ showing appellant committed the offense despite the tentative in-court identification. Nonetheless, appellant also contends Athe evidence which tends to disprove the appellant=s identity as the burglar overwhelmingly outweighs the evidence showing that he is the burglar.@ Appellant notes that the State failed to present evidence that appellant was not one of the construction workers, the State did not take fingerprint evidence of the construction workers to rule them out as the burglar, and police did not try to take fingerprints of the computer monitor or toy car. Appellant also notes there was no evidence he possessed any items from Zurita=s home and he was not arrested at the scene. All of these factors do not outweigh the evidence presented by the State that appellant burglarized the home. Moreover, Officer Gray testified that he did not check for fingerprints on the computer monitor or the toy car because it is difficult to recover usable fingerprints from plastic surfaces or the frosted screen on a computer monitor. Examining the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found that appellant burglarized Zurita=s habitation and find the evidence legally sufficient. Viewing the evidence in a neutral light, we conclude that the jury=s verdict is not contrary to the great weight and preponderance of the evidence and find the evidence factually sufficient. Accordingly, we overrule appellant=s first issue. III. Jury Instruction In his second issue, appellant contends the trial court erred by denying his request for a jury instruction on the lesser-included offense of burglary of a building. Specifically, appellant contends the fact that complainant=s home had been Aunder substantial construction@ for remodeling could have rendered the home unsuitable for overnight accommodation and constituted evidence that the burglar entered a building instead of a habitation. However, appellant=s argument on appeal does not comport with his objection at trial. At trial, appellant=s counsel requested that the instruction regarding the lesser-included offense of burglary of a building be included in the jury charge because the garage was Adetached from the residence and any property that was reported to be stolen didn=t come out of the residence. It just came out of the garage.@ Appellant=s rationale for the requested instruction differs substantially and does not comport with the rationale for his request at trial. Because appellant=s argument on appeal does not comport with his objection at trial, his complaint is not preserved for review. See Penry v. State, 903 S.W.2d 715, 753 (Tex. Crim. App. 1995); Drew v. State, 76 S.W.3d 436, 462 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). We overrule appellant=s second issue. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed May 17, 2007. Panel consists of Justices Frost, Seymore, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).