Nos. 05-04-01630-CR, 05-04-01631-CR
Opinion Issued June 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-57048-QM, F03-74197-RM. Affirmed as modified.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
WHITTINGTON, Justice.
A jury convicted Wayne Clyde Rivers of evading arrest or detention while using a motor vehicle and burglary of a building. The jury found two enhancement paragraphs true in each case and assessed punishment at two years' confinement and a $1000 fine for the evading arrest, and fifteen years' confinement and a $1000 fine for the burglary. In two points of error, appellant contends the evidence is factually insufficient to support the burglary conviction and the judgment in cause no. 05-04-01630-CR should be modified to reflect appellant's true name. We affirm the trial court's judgment in the burglary case. We affirm the trial court's judgment as modified in the evading arrest case.
Background
At approximately 11:10 p.m. on October 29, 2003, Dallas police officers Leslie Ordway and Natalie Carr responded to a burglary-in-progress dispatch call at a hotel located at Interstate 35 and Wycliff. The officers were instructed to look out for a blue Chevrolet pickup truck. When they arrived at the hotel, they saw a 1983 blue pickup truck on the north side of the building next to a chain-link fence that surrounded the hotel. Carr testified she saw two men sitting in the cab of the truck, and there were pallets stacked by the fence in close proximity to the truck. When the men saw the patrol car, they drove away at a high rate of speed. The officers followed the truck. After Carr saw the truck go through a red light without stopping, she activated the flashing lights and siren on the patrol car. The truck stopped on the service road. Ordway walked within ten feet of the truck before the driver sped away and went south on the highway. As the officers chased the truck, they saw the driver zigzag from the far right lane to the far left lane several times. The truck exited at Continental, drove about one-half mile further, then stopped. The driver and passenger jumped out of the truck and ran in opposite directions. Ordway and Carr both identified appellant, who was the registered owner of the truck, as the driver. The officers chased appellant and apprehended him. The officers found tools and construction materials in the bed of appellant's truck, including rolls of wire, a cordless drill, circular saw, metal heat bender, shop dry vac, cordless telephone, and ladder. The officers impounded the truck, left the items in the bed of the truck, and took appellant to jail. Officer F.H. Smith investigated the burglary of the hotel the next morning. The hotel was closed while it was being remodeled. Smith saw a six-foot perimeter fence around the building and a pallet leaning against the fence like a ladder on the north side of the site. Once inside the building, Smith saw that a glass door near the swimming pool area had been smashed with a large block of concrete, and a door on the north side of the building had been propped open. Smith testified he believed the burglar entered the building through the broken glass door and carried tools and materials out through the north door. Elias Cedillo testified he was the second assistant to the superintendent of the remodeling project at the hotel. Cedillo supervised all of the subcontractors on the project and took care of the property on the site. Cedillo testified that only he and the superintendent had keys to the gates that led into the site, and Cedillo was always the last person to leave the premises. Cedillo kept all of the power tools and supplies inside the building near the pool area. Cedillo testified that on October 29, 2003, he secured the premises and locked the gates at approximately 4:30 p.m. When Cedillo returned to the hotel the next morning, he saw that the glass door near where he kept the tools was broken and tools and supplies were missing. Later, Cedillo recovered tools and equipment that had been inside the hotel from the back of appellant's truck. Burglary Case
In his first point of error, appellant argues the evidence is factually insufficient to support the burglary conviction. Appellant contends there were no witnesses who saw him either enter or leave the building, and the tools found in appellant's truck could have been found outside the building and could have been removed from the building by someone else. Appellant asserts that the mere possession of stolen property creates only a presumption of guilt and is insufficient to sustain the jury's verdict. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly entered a building not then open to the public, without the owner's effective consent, and committed a theft. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003). Cedillo testified he locked the building and the gates to the site before leaving the premises. Cedillo also testified that tools and supplies found in the back of appellant's truck were inside the building when Cedillo left the premises that day. The officers saw a pallet against the fence on the north side of the building and appellant's truck was next to the pallet. The glass on the back door of the building was smashed, and a door on the north end of the building was propped open. When the police approached, appellant drove away at a high rate of speed and continued to flee from the police until he was ultimately apprehended. After appellant was arrested, officers found tools and supplies from the hotel's site in the back of his truck. In cases where there is independent evidence of a burglary, the unexplained personal possession of recently stolen properly may constitute sufficient evidence to support a conviction. See Chavez v. State, 843 S.W.2d 586, 587 (Tex.Crim.App. 1992). Viewing the evidence under the proper standard, we conclude it is factually sufficient to support the burglary conviction. We overrule appellant's first point of error. Evading Arrest Case
In his second point of error, appellant argues the judgment in the evading arrest case should be modified to reflect his true name. The trial court's judgment recites that appellant's name is "Wayne Clude Rivers." Appellant's middle name is Clyde. Thus, the judgment is incorrect. We sustain appellant's second point of error. We have the power to modify incorrect judgments when we have the necessary information to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We modify the trial court's judgment to show appellant's name is Wayne Clyde Rivers. Conclusion
In cause no. 05-04-01630-CR, we modify the trial court's judgment to show appellant's name is "Wayne Clyde Rivers." As modified, we affirm the trial court's judgment. In cause no. 05-04-01631-CR, we affirm the trial court's judgment.