Opinion
No. 05-10-00833-CR
05-16-2012
RICHARD DAVID FIELDS, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed May 16, 2012.
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-71894-W
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, Richter
Opinion By Justice FitzGerald
The trial court found appellant Richard David Fields guilty of burglary of a building and assessed his punishment at three years' confinement and a $1500 fine. In this Court, appellant contends the evidence is insufficient to support his conviction. Because the issue involves the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's judgment as to appellant's guilt, but we remand the case to the trial court for a new punishment hearing.
The State charged appellant with burglarizing a liquor store. The burglar stole cartons of cigarettes and bottles of liquor and left cigarettes and bottles strewn on the floor. The sole incriminating evidence against appellant was a fingerprint that was found in the store after the robbery. (At trial, appellant stipulated the fingerprint was his.) The print was left on a pack of cigarettes, on the floor, behind the store counter. The owner of the store, Sam Chrouk, testified at trial that only his own family members were permitted behind the counter and in the adjacent store room. And those two places-behind the counter and in the storeroom-were the only places cigarettes were kept. Chrouk's only non-family employee, Audrick Gipson, also testified at trial. Gipson had worked in the store for approximately seven years handling security. He confirmed Chrouk's testimony that only family went behind the counter or in the storeroom and that all cigarettes and "high dollar alcohol" were kept in those locations.
This witness's last name is spelled both "Gipson" and "Gibson" in the record. We use the spelling used in the reporter's record when the witness testified to his own name.
Both witnesses also testified that appellant had never been inside the store. Chrouk and Gipson knew who appellant was. Appellant had approached Chrouk some weeks before the burglary when Chrouk was working on building a fence around his trash dumpster. Appellant offered to help build the fence in return for food, and Chrouk employed him on those terms for the one-day project. But both Chrouk and Gipson testified appellant did not enter the store that day in connection with his work: all tools and materials he needed were brought outside to him.
We determine whether the evidence is sufficient to support each element of a criminal offense by examining the evidence in the light most favorable to the judgment, and asking whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks, 323 S.W.3d at 899-900. We defer to the trier of fact's determinations of the witnesses' credibility and the weight to be given their testimony because the trier of fact is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900. In conducting this analysis, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). A person commits the offense of burglary if, without the owner's consent, the person enters a building not then open to the public with intent to commit theft. Tex. Penal Code Ann. § 30.02(a)(1) (West 2011). The only issue specifically challenged by appellant in this case is identity, i.e., whether he was the person who entered the liquor store without consent and committed theft. He challenges whether the fingerprint alone can be sufficient to establish his guilt beyond a reasonable doubt.
Texas courts have held fingerprint evidence sufficient to sustain a burglary conviction if the evidence shows the fingerprints were made at the time of the burglary. See, e.g., Bowen v. State, 460 S.W.2d 421, 423 (Tex. Crim. App. 1970); Villareal v. State, 79 S.W.3d 806, 811 (Tex. App.-Corpus Christi 2002, pet. ref'd). But appellant contends there is no way to establish when the fingerprint was left on the pack of cigarettes, a moveable object in a public place. Chrouk and Gipson both testified, however, that appellant could not have had access to the cigarettes before the robbery because (a) the cigarettes were kept in an area that only family was permitted to enter, and (b) appellant had never been inside the store when it was open. Therefore, the State argues, the print must have been left during the burglary. Although appellant contends the print could have been left at some other time, the record does not support that conclusion. Instead, the record tends to show the fingerprints were made at a time when the store was not open to the public, i.e., at the time of the burglary. See Villareal, 79 S.W.3d at 811-12. Finally, there was no factual issue as to whether the fingerprint had been left by appellant; he stipulated that it was his print. When we view the finger print and the witnesses' testimony in the light most favorable to the verdict, we conclude a rational trier of fact could have determined beyond a reasonable doubt that appellant participated in the burglary of the store. Accordingly, the evidence is sufficient to support appellant's conviction. See Brooks, 323 S.W.3d at 899-900.
Appellant was charged with, and convicted of, a state jail felony; the punishment range for a state jail felony is not more than two years or less than 180 days. Tex. Penal Code § 12.35(a). Appellant's judgment states that enhancement paragraphs were "N/A" or not applicable to his case, and the court's oral assessment of punishment made no reference to a basis for enhancement. The parties agree that no evidence was offered during the punishment phase of appellant's trial. They also agree that-given the record before us-the three-year sentence imposed is outside the appropriate range of punishment and is, therefore, illegal. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). The proper remedy when the court assesses an erroneous sentence is to remand the case for a new punishment hearing. Cranford v. State, 124 S.W.3d 811, 812 (Tex. App.-Dallas 2003, pet. ref'd).
The judgment is affirmed as to appellant's guilt. However, we remand the case to the trial court for the purpose of conducting a new punishment hearing.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100833F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICHARD DAVID FIELDS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00833-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 71894-W).
Opinion delivered by Justice FitzGerald, Justices Moseley and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED as to guilt. The judgment is REVERSED AND REMANDED for a new punishment hearing.
Judgment entered May 16, 2012.
KERRY P. FITZGERALD
JUSTICE