Opinion
No. 05-02-01668-CR
Opinion issued July 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F01-23841-QL. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
OPINION
Michael Watson appeals his burglary of a habitation conviction. The jury convicted appellant, and the trial court assessed punishment, enhanced by two prior felony convictions, at thirty years' confinement and a $10,000 fine. In two issues, appellant argues the evidence is factually insufficient to support his conviction, and the trial court improperly commented on the weight of the evidence by instructing the jury that intent may be inferred from acts done, words spoken, or both. We affirm the trial court's judgment. Appellant lived next door to Kimberly Smith and helped Smith with her car, her lawn, and other tasks. Although appellant did not have a key to Smith's house, he knew how to enter her house through the garage without a key. Appellant also knew Smith owned a laptop computer. About a month after appellant moved out of the house next door, Smith returned home to find her laptop and a lawn mower missing. Jessica Yanez, Smith's neighbor across the street, told Smith appellant had taken Smith's lawn mower, and Smith called the police. At trial, Yanez testified she knew appellant because she dated his roommate. At approximately 11:00 a.m. on the day of the offense, Yanez looked out her window and saw appellant opening Smith's garage door. Yanez saw appellant come out of the garage with a lawn mower and put it in the back of a pickup truck. Appellant closed Smith's garage door and sat in the truck with two other men for approximately five minutes. At one point, Yanez turned away from the window and, when she looked back, the truck was gone. Yanez subsequently identified appellant in a photographic lineup as the man she saw take the lawn mower. Yanez testified there was no chance she saw appellant's brother take the lawn mower. The jury convicted appellant, and this appeal followed. In his first point of error, appellant argues the evidence is factually insufficient to support his conviction. Specifically, appellant challenges the sufficiency of the evidence establishing his identity as the one who committed the offense. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786 at *7 (Tex.Crim.App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1999). Here, Yanez testified she recognized appellant as the man who took Smith's lawn mower on the day of the offense. Yanez testified there was no way she could have seen appellant's brother commit the offense instead of appellant. Smith's testimony established that appellant knew Smith owned the lawn mower and a laptop computer. Under these circumstances, we conclude the evidence is factually sufficient to establish appellant was the one who took the lawn mower on the day of the offense. See Zuniga, 2004 WL 840786 at *7. We overrule appellant's first point of error. In his second point of error, appellant argues the trial court improperly commented on the weight of the evidence by instructing the jury that intent may be inferred from acts done, words spoken, or both. Such an instruction, though improper, is benign, and any error in its inclusion is harmless. See Brown v. State, 122 S.W.3d 794, 803 (Tex.Crim.App. 2003). Thus, the trial court did not reversibly err in including the instruction in the jury charge. See id. We overrule appellant's second point of error. We affirm the trial court's judgment.