Opinion
No. 05-04-01086-CR
Opinion filed November 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F03-39952-VH. Affirm.
Before Justices MORRIS, WRIGHT, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Lorse Larue Gainous of burglary of a habitation and, after finding the enhancement paragraphs true, sentenced him to forty-five years in prison. In two points of error, appellant complains about the factual sufficiency of the evidence and the definition of reasonable doubt in the jury charge. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgment. In the early morning hours of May 10, 2003, Larry Griffin noticed a green and blue Astro van parked in front of the home of his neighbor, James Mineau. Griffin observed the appellant knocking on Mineau's door. Later, Griffin saw the appellant and another man load a large television set into the van. Griffin immediately called the police. According to Griffin, one of the men had a greyish beard, short hair, and wore dark pants and a multi-colored shirt. The other man wore blue jeans and a tee shirt. Griffin gave the van's license plate number to the police. A police officer located and pursued the vehicle until the occupants abandoned it. The officer then chased the driver of the van on foot until he lost sight of him. The van, registered to the appellant, contained Mineau's television sets and DVD player. Shortly thereafter, police officers found the appellant at his home, lying under the covers in his bed, wearing dark pants but no shirt. He was sweating, had a rapid heart beat, and was breathing hard as though he had been running. A multi-colored shirt belonging to the appellant was lying on the bedroom floor. A police officer asked Gainous to put on the multi-colored shirt and drove him back to Griffin's neighborhood. Griffin identified Gainous as one of the men he saw removing property. Appellant was charged with burglary of a habitation. In his first point of error, appellant contends the evidence is factually insufficient to support the jury's fact finding that appellant was the individual who committed the crime. Appellant argues Griffin was the only eyewitness to the event and his testimony was too uncertain to support the verdict. Appellant emphasizes Griffin was never closer than forty feet to the man, had a poor vantage point, and attempted to observe too many details simultaneously. Moreover, appellant claims that at the pretrial hearing Griffin changed his description of the clothing worn by the burglar and consequently his testimony is unreliable. The standard for reviewing the factual sufficiency of the evidence is well established. See Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In reviewing the factual sufficiency of evidence to support a verdict, we review all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. When Griffin reported the burglary to the police, he stated the burglar wore a multi-colored shirt, dark pants and had a greyish beard and short hair. Likewise, when Griffin identified Gainous following his arrest, Gainous's physical appearance matched the original description Griffin reported to the police. Although Griffin testified during the pretrial hearing that the appellant wore jeans and a tee shirt, he consistently described the physical appearance of the appellant on the day of the burglary and later at trial. Giving due deference to the jury's assessment of the totality of the evidence, the witnesses' credibility, and resolution of any evidentiary conflicts, we conclude after reviewing the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. We overrule the first point of error. In his second point of error, appellant complains the trial court erred by instructing the jury, "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." Appellant argues this instruction provides a definition of reasonable doubt and therefore violates the holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We have previously decided this precise issue. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.-Dallas 2003, pet. ref'd). Although appellant expresses disagreement with the O'Canas opinion, we do not share similar concerns. We overrule the second point of error. We affirm the trial court's judgment.