No. 05-03-01207-CR
Opinion Issued September 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-51120-T. Affirmed.
Before Chief Justice THOMAS and Justices BRIDGES and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
MALONEY, Justice.
A jury convicted Mark Wayne Brown of burglary of a building. The trial court found both enhancement paragraphs true and assessed a ten-year sentence. In two issues, appellant complains the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
BACKGROUND
Officers Fregeau and Stacy responded to a burglar alarm at the True Vine Holy Temple Church. When they arrived at the church, they found appellant walking down the church steps, sweating, and breathing heavily. They detained appellant and found a motion sensor and pliers in his pocket. Inside the church, Fregeau and Stacy found an identical motion sensor still attached to the wall and two other pliers-one of which had an identical handle to that found on appellant. They arrested appellant for burglary. WAS THE EVIDENCE LEGALLY AND FACTUALLY SUFFICIENT?
Appellant complains the evidence was legally and factually insufficient because no witness saw him inside the building. Additionally, appellant contends he offered explanations for the motion sensor in his pocket and for being out of breath and sweating. Appellant argues the physical evidence supports his explanation. 1. Standard of Review
a. Legal Sufficiency In evaluating the legal sufficiency of the evidence, we view 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. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The factfinder is the exclusive judge of the witnesses' credibility and their testimony's weight, and it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented. Id. b. Factual Insufficiency
In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). 2. Applicable Law
To support appellant's conviction for burglary of a building, the State must prove that appellant intentionally and knowingly entered the church without the owner's effective consent and attempted to commit theft, actually committed theft, or entered with the intent to commit theft. See Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). The State may prove burglarious entry solely through circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex.Crim.App. [Panel Op.] 1978). Unexplained personal possession of recently stolen property together with independent evidence of a burglary may constitute sufficient evidence to support a conviction. See Harris v. State, 656 S.W.2d 481, 483 (Tex.Crim.App. 1983). Mere possession of stolen property does not give rise to a presumption of guilt, but it will support an inference of guilt in the offense in which the property was stolen. See Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App. 1983). To warrant an inference of guilt based solely on the possession of stolen property, the possession must be personal, recent, and unexplained. Grant v. State, 566 S.W.2d 954, 956 (Tex.Crim. App. [Panel Op.] 1978). Also, the defendant must assert a distinct and conscious assertion of right to the property. Id. And he must offer the explanation when first called upon circumstantially or directly to do so. Taylor v. State, 921 S.W.2d 740, 744 (Tex. App.-El Paso 1996, no pet.). If the defendant offers an explanation for his possession of the stolen property, the State may prove the falsity of that explanation with circumstantial evidence. See Hood v. State, 860 S.W.2d 931, 936 (Tex. App.-Texarkana 1993, no pet.). Whether a defendant's explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the factfinder. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.-Texarkana 2001, no pet.). 1. The Evidence
a. Greg Fregeau Fregeau, a Dallas police officer, testified he was working the "deep nights" shift on the night in question. Around 2:45 a.m., Fregeau and his partner, Royson Stacy, responded to a security alarm sounding at the True Vine Holy Temple Church. They arrived at the scene within two minutes. As they drove toward the church, Fregeau saw appellant walking down the church's front steps and away from the church. Fregeau and Stacy stopped their patrol car, and Fregeau asked appellant to stop. Fregeau could hear the alarm when he arrived at the scene and thought it was suspicious for someone to be coming down the steps while the alarm was going off. For his safety and to facilitate an investigation, Fregeau placed appellant in handcuffs. Fregeau asked appellant why he was sweating and breathing so heavily. Appellant said he was running from "some drug dealers" at a nearby motel. They "were trying to kill him." Fregeau knew the nearby motel had a reputation for drug dealing. Although Fregeau saw no one in the area who might have been chasing appellant, he agreed that it was not likely a person who was trying to hurt someone would run toward a police officer. Fregeau patted down appellant and found an motion sensor and needlenose pliers in his back pocket. Appellant identified the motion sensor as a TV remote control that he had picked up from the ground and the pliers as ones that he used on his television's broken knob. Meanwhile, Stacy had gone to the church to investigate and found the glass front door broken. When the back-up officers arrived, Fregeau went to investigate the church. He saw a brick inside the front door that appeared to have been used to break the glass door. A speaker and its stand taken from the sanctuary were lying outside the door. The church secretary arrived about twenty minutes later. She accompanied Fregeau and Stacy while they searched the sanctuary. They found no one else inside the building. In one corner, they found wires "hanging out" where a motion sensor had been attached. On another corner, they found a motion sensor still attached to the wall. It was identical to the one found in appellant's pocket. They found two more pliers inside the sanctuary. One of the pliers was identical to the pliers found in appellant's pocket. Fregeau did not think anyone from Physical Evidence Section took pictures at the scene. He thought the evidence person had tried to lift fingerprints from the pliers found inside the church. Fregeau did not wear gloves when he collected the pliers from appellant's pocket because "you're not going to be able to get prints off of the handles on these items so there was no need to wear gloves." He agreed, however, that the evidence people could lift prints from the metal parts of pliers even if they were unable to do so from the handles. Fregeau returned the motion sensor found in appellant's pocket to the church secretary. Fregeau said the module did not resemble a remote control of any type because it had no buttons, no keys, and no numbers. b. Royson Stacy
As Stacy and Fregeau arrived at the church, Stacy saw appellant walking down the stairs from the front door. Appellant walked toward their car. Stacy admitted that although some people will run away from a crime scene, most people commonly cooperate. Stacy went to the church to see if an offense had occurred, and Fregeau talked to appellant. As Stacy got closer to the church, he realized the glass door had been broken out. The door was completely shattered, and a large brick was inside the foyer area laying among the glass shards. It was apparent someone had broken the door by throwing the large brick. A large speaker and speaker stand were laying in the doorway. Stacy did not hear an audible alarm as he approached the church. However, he triggered the alarm when he looked into the sanctuary. Stacy commented that, depending on the alarm company, some alarms reset themselves and do not continuously sound. He then left the building and waited for a church representative to arrive. While he waited, Stacy secured the east side of the building to ensure no one exited out the back door. He stayed there until the backup officers arrived. Once the church representative arrived, Stacy searched the church. He noticed that a motion sensor had been pulled off the wall. Also, the doors between the foyer and the sanctuary had been forced open. In the sanctuary, Stacy saw another speaker stand knocked over that matched the one found in the doorway. Outside, he found another speaker behind some bushes that matched the speaker found in the doorway. While searching the sanctuary, Stacy saw some "regular" pliers laying in the aisle and crimping pliers between some pews. Stacy did not wear gloves when he gathered the pliers, but he said it would not be easy to get fingerprints off a rubber handle. The handles of the regular pliers matched the handles of the pliers that Fregeau found in appellant's pocket. One of the pliers did appear to have been used more than the other, and the regular pliers had printing on the metal. c. The Church Secretary
The church secretary received a telephone call from the security company that monitored the church alarm system. She arrived at the church about twenty minutes later. She saw police cars at the church and appellant in handcuffs, sitting on the ground. After turning off the alarm, she accompanied Fregeau and Stacy and other police officers into the church. When they searched the church, one officer went upstairs and another wanted to see the damage to the church. The front glass door was shattered, and the door leading into the sanctuary was damaged. A speaker was outside, and other speakers were unmounted. The motion sensor had been cut out. She noticed the two pliers found inside the church. The church secretary was still at the scene when officers came to process items for fingerprints. She said they tried to get fingerprints from the metal bars of the speakers and from the front door. She did not recall the officers taking any pictures. The secretary confirmed that appellant had not been given permission to enter the church. The church was closed to the public at that time of night. She said she had a greater right to the property inside the church compared to appellant, and thus could be called the owner of the property. 4. Application of Law to Facts
Neither Fregeau nor Stacy saw anyone else leaving the church and did not see appellant inside the church, but other evidence can support a burglary conviction. See Gilbertson, 563 S.W.2d at 608. Appellant was walking down the steps, away from the front door, when the officers approached the church. Appellant was sweating and breathing heavily. Even though Stacy said the alarm was not audible until he stuck his head inside the church, Fregeau said the alarm was ringing when they arrived. The physical evidence of the speakers lying outside the church neither supports nor contradicts appellant's explanation. Appellant argues their placement indicated the alarm sounding interrupted the burglars, but the jury could have decided that appellant was the burglar who was interrupted. Appellant claimed he was out of breath, sweating, and nervous because he was running from drug dealers that wanted to kill him. The police, however, saw no one else near the church. Additionally, appellant identified the motion sensor found in his pocket as a TV remote he had found on the ground, it had no buttons or numbers on it and did not resemble a remote control. Rather, the motion sensor from his pocket matched the motion sensor still attached to the church wall. And the pliers in appellant's pocket appeared to be from the same set as one of the pliers found inside the church. Although appellant offered an explanation for his possession of recently stolen property, whether his explanation was true or reasonable was a question of fact. The jury was free to reject appellant's explanation. See Dixon, 43 S.W.3d at 552; see also Swearingen, 101 S.W.3d at 97; Wesbrook, 29 S.W.3d at 111. Viewing the evidence in the light most favorable to the verdict, we conclude a factfinder could have found the essential elements of the offense beyond a reasonable doubt. The jury was the exclusive judge of the witnesses' credibility and it was within its exclusive province to resolve any evidentiary conflicts. We resolve appellant's first issue against him. After reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment under the Zuniga standard, we cannot conclude that the contrary proof is so strong that the State did not meet the beyond-a-reasonable-doubt standard. Nor can we conclude the evidence is too weak to support a finding of guilt beyond a reasonable doubt. Any inconsistencies in the testimony go to the witnesses' credibility and the factfinder decided those issues against appellant. We conclude the evidence was factually sufficient to support appellant's conviction of burglary. We resolve appellant's second issue against him. We affirm the trial court's judgment.