Donald Wayne Young v. State

Affirmed and Memorandum Opinion filed October 8, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00711-CR ____________ Donald Wayne Young, Appellant V. The State of Texas, Appellee On Appeal from the Second Judicial District Court Cherokee County, Texas Trial Court Cause No. 17109 M E M O R A N D U M   O P I N I O N A jury convicted appellant Donald Wayne Young of burglary of a building, and after finding two enhancement paragraphs true, sentenced him to eleven years’ confinement in the Texas Department of Criminal Justice, Institutional Division. In a single issue, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm. I. Background On the morning of January 17, 2008, Officer Eric Dawes and Sergeant Royce McCullough of the Jacksonville, Texas police department received notice of an anonymous call describing suspicious activity near an abandoned medical building. According to the caller, a blue Chevrolet Blazer had pulled out from behind the abandoned building and parked at a Mini Mart across the street; the driver of the vehicle got out of the Blazer and returned to the building on foot. Dawes and McCullough arrived separately at the Mini Mart and found the described vehicle unoccupied; they noticed several hand tools on the floor of the front passenger compartment. Both Dawes and McCullough were familiar with the building because it had been burglarized frequently in the past. McCullough pulled his patrol vehicle behind the Blazer so it could not leave the parking lot; the two officers drove to the abandoned building in Dawes’s patrol car. They entered the unsecured building and began a “sweep” for suspects. After searching the first floor, the two officers descended the stairwell, where they found a blue tote containing several bathroom fixtures, hand tools, and a flashlight. As they continued their sweep of the basement level, Dawes discovered two individuals, later identified as David Scott Bachus and appellant, in the back corner of a basement room. Bachus matched the description of the individual seen parking the Blazer and walking towards the building. The officers discovered a second flashlight at their feet, although no tools or plumbing fixtures were found on either Bachus or appellant. The officers secured the two individuals in the back of Dawes’s patrol car and returned to the building to take pictures of the fixtures, tools, and flashlights. They then returned to the Mini Mart to examine the blue Blazer, where they found more hand tools and a collection of receipts from a scrap metal yard signed by Bachus; one of the receipts was dated the previous day. At appellant’s trial, the two officers testified to the above facts. Appellant explained his presence in the building as follows. He testified that he was currently homeless, but had been living in a tent and working cutting timber. He had known Bachus for a number of years and had tried to get Bachus a job with his employer. According to appellant, Bachus wanted to breed his dogs with appellant’s pit-bull dog, and the two went to pick up appellant’s dog in Bachus’s Blazer on January 14. Appellant testified that after dropping his dog off at Bachus’s residence, Bachus was supposed to take him back to his camp site. Instead, according to appellant, Bachus stopped at a local “crack house.” Appellant stated that he waited for Bachus outside the crack house for over an hour, but finally knocked on the door. Bachus came out of the crack house and told appellant he was “too high to drive.” Appellant testified that Bachus said he would take appellant somewhere nearby to wait for Bachus to allow the effects of the drugs to subside. Appellant explained that Bachus dropped him off at the abandoned medical building at around 2:00 or 2:30 a.m. the day before they were discovered in the building. According to appellant, he spent the next twenty-four plus hours in the abandoned building without eating, drinking, or venturing far from the room in which he was discovered. He testified that he had slept on a mattress that, according to appellant, was about seventy-five to one-hundred feet away from him. He claimed to have woken to the sounds of movement followed closely by Bachus’s arrival and his warning that the police had arrived. Appellant asserted that he had never seen the tools found near the stairway and that he had been using the flashlight found on the floor near him to navigate in the dark. Although he admitted that both flashlights found in the building belonged to him, he had no idea how the flashlight found in the blue tote had gotten there. Appellant also described his rather lengthy criminal history—he admitted having been convicted previously of unauthorized use of a motor vehicle, theft, and possession of a weapon. On rebuttal, both Dawes and McCullough testified that they had not seen a mattress in appellant’s vicinity. Finally, the State called retired police officer Randy Hatch to testify about appellant’s character. He stated that he knew appellant and that appellant has a bad character for truth and veracity. After hearing the evidence, the jury convicted appellant of burglary of a building and sentenced him to eleven years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court entered judgment accordingly, and this appeal timely followed. II. Analysis In a single issue, appellant asserts that the evidence is legally and factually insufficient to establish that he entered the building with the intent to commit theft. Specifically, he asserts that he entered the building to wait for Bachus to return and pick him up, rather than with the intent to commit theft. A. Standard of Review When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). Rather, we examine all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc). Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc). In other words, the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn therefrom in making our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When reviewing the factual sufficiency of the evidence, on the other hand, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or (2) whether, considering conflicting evidence, the jury’s verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Nor can we declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. We must give due deference to the jury’s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. See Johnson, 23 S.W.3d at 8–9. B. Application As is relevant here, a person commits the offense of burglary of a building if, without the effective consent of the owner, he enters a building not then open to the public with the intent to commit theft. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). As an essential element of burglary, intent must be proved by the State beyond a reasonable doubt and may not be left simply to speculation and surmise. Coleman v. State, 832 S.W.2d 409, 413 (Tex. App.—Houston [1st Dist.] 1992, writ ref’d) (citing LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986) (en banc)). The intent to commit theft must exist at the time of and accompany the entry into the habitation; if it is formed after the entry, the offense of burglary has not been established. See id. The intent with which a defendant enters a building is a fact question for the jury to decide from surrounding circumstances. Lewis v. State, 715 S.W.2d 655, 657 (Tex. Crim. App. 1986) (en banc). Further, determining intent is a highly fact-specific endeavor. Cf. Stearn v. State, 571 S.W.2d 177, 177–78 (Tex. Crim. App. [Panel Op.]1978) (concluding that sufficient evidence of intent to commit theft supported verdict when defendant was discovered in the kitchen of a private residence, nothing was disturbed beyond what was necessary to enter, and he fled when discovered); Black v. State, 183 S.W.3d 925, 928–29 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (stating that evidence of intent to commit theft was sufficient because appellant was found inside a school, his shoe prints were on a broken window, and a computer was packed up and “ready to go”). Viewing the evidence detailed above, a rational juror could have inferred that Bachus dropped appellant off outside the building just before the burglary on the morning of January 17, went across the street to park his car at a non-suspicious location, and returned to burglarize the facility with appellant. Indeed, the only evidence that appellant was not dropped off immediately before Bachus parked his car at the Mini Mart came from appellant himself; the jury may have disbelieved appellant’s version of events. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 8–9. And although appellant claimed he spent much of his long stay in the abandoned building sleeping on a mattress in one of the rooms, both officers testified that they did not see a mattress in appellant’s vicinity. Finally, as noted supra, appellant’s credibility was called into question by the testimony of retired police officer Hatch. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant entered the abandoned building with the intent to commit theft.[1] Further, viewing all the evidence in a neutral light, we cannot say that the jury’s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, nor is the verdict against the great weight and preponderance of the evidence. We therefore overrule appellant’s sole issue on appeal. III. Conclusion Having overruled appellant’s only issue, we affirm the trial court’s judgment. /s/ Eva M. Guzman Justice Panel consists of Justices Anderson, Guzman, and Boyce. Do Not Publish — Tex. R. App. P. 47.2(b). [1] Cf. Wilkerson v. State, 927 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1996, no writ) (concluding that there was sufficient evidence of intent to commit theft because defendant was found in a grocery store in the middle of the night, even though he claimed he had fallen asleep during open hours and woken up to find himself trapped, and had never seen the gloves, flashlight, and hammer found near him before); Thomas v. State, 750 S.W.2d 320, 321–22 (Tex. App.—Dallas 1988, no writ) (determining that evidence of intent to commit theft was factually sufficient when defendant was found lying face down and awake in darkened storage room of broken-into building).