No. 05-03-01821-CR
Opinion Filed June 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0373045-SR. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Frederick Eugene Weatherspoon was convicted of burglary of a building. He pleaded true to the two enhancement paragraphs and, after hearing evidence on punishment, the jury assessed his punishment at seven years of confinement and a $250 fine. Appellant brings three issues on appeal: (1) the trial court erred when it admitted evidence of extraneous offenses during the guilt/innocence phase of the trial; (2) the evidence is legally insufficient to support his conviction; and (3) the evidence is factually insufficient to support his conviction. We decide appellant's three issues on appeal against him and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Vision Regeneration is a non-profit organization that works with young people in the Dallas area. It owns the building where Club 36:9, formerly known as the Time Zone, is located. At Club 36:9, Vision Regeneration provides a place where young people can go for entertainment and Bible study. The building is 5,000 square feet and has an eating area, a social area, and a large open area with a stage, speakers, and amplifiers for performances. There are many homeless people, including appellant, who hang out across the street from the club. Omar Jahwar, the executive director of Vision Regeneration, Esther Callaway, the club manager, and the members of Six Bells Ministries were at Club 36:9 painting the building. The members of Six Bells Ministries left around 8:00 p.m. Jahwar and Callaway closed the building around 9:00 p.m. When Callaway arrived at work the following morning, she saw a broken window. There was broken glass in the window frame and shards of glass on the floor. A television, VCR, and drill with an approximate value of $200 or $250 were missing from the building. Callaway called the police to report a burglary. She also called Jahwar to inform him of the burglary and to ask him to come to the club. The police responded to Callaway's call. When the crime scene technician arrived, he asked Jahwar to show him where good places to check for fingerprints might be. The crime scene technician only dusted the broken glass for fingerprints and did not dust the kitchen door because so many people had touched the door since the break in. The kitchen door can be opened from the inside, but automatically locks when it closes, and it was determined to be the only possible exit the burglar could have used to remove the missing items. The crime scene technician lifted several fingerprints from the broken glass, eleven of which were unidentifiable. He lifted a left thumb print from a piece of broken glass still in the window frame that was facing outside the building and, a left index finger on the side of the glass that was facing inside the building. The crime scene technician also lifted a left little finger and left ring finger print from shards of glass laying on the floor inside the building. The prints were on the side of the glass that would have been facing the inside of the building. He was able to determine which side of the glass was facing inside and which side was facing outside from the paint on the window trim. Jahwar and his employees replaced the broken window. A few days after the burglary, Jahwar came to work and found the window had been broken again and three amplifiers were missing. He made a police report, but the police did not come to the scene again. Instead of replacing the glass, Jahwar and Roman Jefferson, an employee, boarded up the broken window. The next day, the club was burglarized for a third time. The board was moved, the kitchen area was ransacked, and all of the food as well as the remaining speakers and amplifiers were missing. The police were called and the crime scene technician lifted fingerprints from the broken glass. A detective ran the fingerprints through the Automated Fingerprint Identification System (AFIS) and he compared appellant's fingerprints with the fingerprints lifted at the scene of the burglary. The detective identified the fingerprints lifted after the first burglary as appellant's. The detective identified the fingerprints lifted after the third burglary as the fingerprints of appellant and Jefferson. Meanwhile, Jahwar attempted to locate the stolen property. He went to area pawnshops and to the "little village" where the homeless people stay, but he was unable to find any of the stolen property. Appellant, a homeless man who hung around the area of Club 36:9, was indicted for the burglary of a building, which was enhanced by his prior convictions for unauthorized use of a motor vehicle and burglary of a building. During the guilt/innocence phase of the trial, the trial court permitted the State to introduce evidence of the second and third burglaries to prove identity, over the defendant's objections. The jury found appellant guilty of burglary of a building. Appellant pleaded true to the two enhancement paragraphs and the jury sentenced him to seven years of confinement and a $250 fine. II. EXTRANEOUS OFFENSE EVIDENCE
In his first issue on appeal, appellant argues the trial court erred when it admitted evidence of two extraneous offenses during the guilt/innocence phase of the trial. Appellant contends the evidence is not relevant and the probative value of the extraneous offense evidence is substantially outweighed by the danger of unfair prejudice. The State responds that the extraneous offense evidence was admissible to prove identity and rebut a defensive theory. A. Standard of Review
An appellate court reviews a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See, e.g., Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). Accordingly, an appellate court reviews a trial court's ruling on extraneous offense evidence for an abuse of discretion. See Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App. 2004). An appellate court shall give deference to a trial court when it decides not to exclude the extraneous offense evidence and finds that the probative value of that evidence is not outweighed by the danger of unfair prejudice. See Moses, 105 S.W.3d at 627. B. Applicable Law
Extraneous offense evidence is admissible if: (1) the extraneous offense is relevant to a material issue in the case other than the defendant's character; and (2) the probative value of the evidence outweighs its prejudicial effect. See Tex. R. Evid. 404; Robinson v. State, 701 S.W.2d 895, 896 (Tex.Crim.App. 1986). 1. Relevance
Evidence which is not relevant is not admissible. Tex. R. Evid. 402; see also Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1990) (opin. reh'g). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Even when evidence is relevant, Texas Rule of Evidence 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts unless it is relevant to prove some issue other than the defendant's criminal character. See Montgomery, 810 S.W.2d at 386. Some of those issues are: (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; and (8) absence of mistake or accident. Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387. Evidence of other crimes, wrongs, or bad acts may also be admissible to rebut a defensive theory. Powell, 63 S.W.3d at 439; Rankin, 974 S.W.2d at 718. A trial court's limiting instructions may show the purpose for which the trial court admitted the extraneous offense evidence. See Powell, 63 S.W.3d at 439 (citing Tex. R. Evid. 105(a) (providing for limiting instruction when evidence is admissible for one purpose but not admissible for another)). Proof of identity is a legitimate non-character purpose under Rule 404(b). Johnston v. State, 145 S.W.3d 215, 221 (Tex.Crim.App. 2004). In order for proof of identity to be a valid purpose, it must be an issue in the case. Page, 137 S.W.3d at 78. The defendant can raise the issue of identity during cross-examination. Id. To be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant's handiwork. Johnson v. State, 68 S.W.3d 644, 650-51 (Tex.Crim.App. 2002). When determining the similarity of the offenses for the purpose of establishing identity, appellate courts should take into account both the specific characteristics of the various offenses and the time interval between them. Id. at 651. But in order for the extraneous offense evidence to be admissible to prove identity, it must show more than a pattern or temporal proximity. See Johnston, 145 S.W.3d at 222. Before admitting extraneous offense evidence to prove identity, the State must first show that the defendant is, in fact, the person who committed the extraneous act. See id. at 221. 2. Probative Value Balanced Against Danger of Unfair Prejudice
Once a trial court rules that the evidence is admissible under Texas Rule of Evidence 404(b), it may exclude that evidence if it determines that the probative value of the extraneous act is substantially outweighed by its danger of unfair prejudice. Feldman v. State, 71 S.W.3d 738, 754 (Tex.Crim.App. 2002); see Tex. R. Evid. 403. When a trial court balances the probative value of the evidence against its danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman, 71 S.W.3d at 754-55; Montgomery, 810 S.W.2d at 389. When reviewing extraneous offense evidence to determine if its probative value is substantially outweighed by its prejudicial effect, an appellate court should apply the four Montgomery-Mozon factors to the evidence: (1) was the probative value of the evidence, either alone or in combination with other evidence, compelling; (2) did the evidence have the potential to impress the jury in some irrational, but nevertheless indelible way; (3) what amount of time did the proponent of the evidence need to develop that evidence and did it distract the jury from considering the indicted offense; and (4) did the proponent of the evidence have other probative evidence available that would help to establish the same fact and did that fact relate to a disputed issue. See Manning v. State, 114 S.W.3d 922, 927-28 (Tex.Crim.App. 2003); see also Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). If the record reveals that one or more of those considerations led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, then an appellate court should conclude that the trial court abused its discretion by admitting the evidence. See Reese, 33 S.W.3d at 241. C. Application of the Law to the Facts
Appellant raised the issue of identity during cross-examination of the State's witnesses. See Page, 137 S.W.3d at 78. Before resting it's case-in-chief, the State announced its intention to present evidence of the second and third burglaries to prove identity. Appellant objected that he did not receive proper notice of the State's intent, that the evidence was not relevant, and that the prejudicial nature of the evidence outweighed its probative value. After a hearing outside the presence of the jury, the trial court determined the evidence was relevant, that its prejudicial nature did not outweigh its probative value, and admitted the extraneous offense evidence. The State recalled the crime scene technician to testify about the second and third burglaries. The crime scene technician testified that he lifted fingerprints from the broken glass after the third burglary. During cross-examination, he stated he did not know what was done with the broken glass from the first burglary, he cannot identify the age of a fingerprint, and it was possible some of the glass he dusted after the third burglary could have been from the first burglary. The State also recalled Jahwar to testify about the second and third burglaries. Jahwar testified that the glass from the first burglary was cleaned up and that he and his employees replaced the broken window. He also stated that four days after the burglary, he found the newly replaced window broken and three amplifiers missing. Jahwar stated he made a police report, but the police did not come to the scene again. Instead of replacing the glass after the second burglary, Jahwar testified that he and Jefferson boarded up the broken window. The record is silent regarding whether or not the broken glass was cleaned up after the second burglary. The next day, Jahwar found the club had been burglarized for a third time. The board covering the broken window was moved, the kitchen area was ransacked, and all of the food as well as the remaining speakers and amplifiers were missing. The police were called and the crime scene technician lifted fingerprints from the broken glass. Jahwar also testified that he knew Jefferson had a prior conviction for "burglary of a vehicle." The State recalled the detective. The detective testified that the fingerprints lifted after the third burglary were identified as belonging to appellant and Jefferson. The trial court instructed the jury that they could not consider the extraneous offense evidence unless they believed beyond a reasonable doubt that appellant committed those offenses. It further instructed the jury that if they believed appellant committed the extraneous offense, they could only consider that evidence when determining the intent or identity of appellant in connection with the indicted offense. The State was required to prove that appellant, without the effective consent of the owner, entered Club 36:9 or any portion of the club while it was not open to the public, and that he intended to commit, committed, or attempted to commit theft. See Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003 Supp. 2004-05). The second and third burglaries were marked as appellant's handiwork because of the similarity of the specific characteristics of the various offenses and they occurred within close temporal proximity. See Johnson, 68 S.W.3d at 650-51. However, in order for the extraneous offense evidence to be admissible to prove identity, the State must show that the defendant is, in fact, the person who committed the extraneous acts. See Johnston, 145 S.W.3d at 221-22. The State introduced evidence that appellant's fingerprints were lifted from the broken glass after the third burglary to show that he committed the second and third burglaries. We conclude the evidence of the second and third burglaries was relevant because it made the existence of the fact that appellant was the burglar more probable. See Tex. R. Evid. 401. Because we have determined that the evidence was admissible under Texas Rule of Evidence 404(b), we must now decide if its probative value is substantially outweighed by its danger of unfair prejudice. In so doing, we apply the Montgomery-Mozon balancing factors. First, we evaluate whether the extraneous offense evidence was compelling. The evidence of the second and third burglaries tends to disprove appellant's defense that the burglar was someone else. Accordingly, we conclude the evidence is compelling. Second, we evaluate the potential of the evidence to irrationally impress the jury. The extraneous offense evidence did not confuse or mislead the jury. Before the evidence of the second and third burglaries, the jury heard that appellant's fingerprints were lifted from the broken glass still in the window frame and the shards of glass found inside the building. The jury also heard that a television, VCR, and drill had been taken from the building. Given the nature of the extraneous offense evidence, we cannot conclude that it was inherently inflammatory or that it was likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose. Third, we evaluate the time needed to develop the evidence, and whether the jury may have been distracted from considering the indicted offense. The record of the guilt/innocence phase of the trial is approximately 192 pages in length. The testimony relating to the extraneous offenses comprises approximately 39 pages of that record and the hearing outside of the jury's presence is approximately 18 pages long. Closing arguments comprise approximately 21 pages; approximately 12 pages for the State's closing argument and 9 pages for appellant's closing argument. The State spent approximately two and three-quarters pages and appellant spent approximately one-half page discussing the extraneous offense evidence during their closing arguments. Comparing the total number of pages in the record for the guilt/innocence phase of the trial with the number of pages representing the testimony and closing argument regarding the extraneous offenses, the record shows approximately 30 persent of the guilt innocence phase of the trial was spent presenting the extraneous offense evidence. Further, although the guilt/innocence phase of the trial lasted approximately one and one-half days, the State spent the majority of its time proving the offense charged in the indictment. See Karnes v. State, 127 S.W.3d 184, 193 (Tex.App.-Fort Worth 2003, no pet.). Also, the development of this evidence did not distract the jury from considering the indicted offense because the jury had already heard that appellant's fingerprints were lifted from the broken glass after the first burglary. See Manning, 114 S.W.3d at 928 (regardless of time spent presenting evidence, it could not have possibly distracted the jury from the indicted offense). Finally, we evaluate the State's need for the challenged evidence. At trial, appellant raised the defensive theory that someone else committed the burglary. The record shows the State presented other probative identification evidence that tended to establish appellant's identity ( i.e., appellant's fingerprints were lifted from the broken glass). However, appellant raised the issue of his identity through cross-examination: no one saw him break into the building or with the stolen property; he was not arrested with the stolen property; there is no evidence that he was trying to sell the stolen property; appellant was a homeless man known to frequent the area along with several other homeless people; other unidentifiable fingerprints were lifted from the broken glass; and the possible time in which the burglary could have occurred was large and the building is located in a high traffic area. Accordingly, the State contends it needed the extraneous offense evidence to help prove the contested issue of identity. Balancing the prejudicial nature of the evidence against its probative value, we conclude that the trial court did not abuse its discretion by admitting the extraneous offense evidence. We decide appellant's first issue on appeal against him. III. LEGAL FACTUAL SUFFICIENCY
In his second and third issues on appeal, appellant argues the evidence is legally and factually insufficient to support his conviction for burglary of a building. A. Standards of Review 1. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000) (en banc). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (en banc). And all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). 2. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997) (en banc). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. And the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001) (en banc). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (en banc); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (en banc). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997) (en banc). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. B. Applicable Law
A person commits burglary of a building if, without the effective consent of the owner, he enters a building or any portion of a building not then open to the public, and he intends to commit, commits, or attempts to commit a theft. See Tex. Penal Code Ann. §§ 30.02(a)(1), (3) (Vernon 2003 Supp. 2004-05). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of that property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-05). A person enters a building if any part of his body or any physical object connected to his body intrudes into the building. See Tex. Pen. Code Ann. § 31.02(b) (Vernon 2003 Supp. 2004-05). Generally, fingerprint evidence alone will be sufficient to sustain a conviction if the evidence shows that the prints were necessarily made at the time of the burglary. Villarreal v. State, 79 S.W.3d 806, 811 (Tex.App.-Corpus Christi 2002, pet. ref'd). One important factor in determining the sufficiency of fingerprint evidence is the extent to which the fingerprinted object was accessible to the defendant. Villarreal, 79 S.W.3d at 811 (citing Phelps v. State, 594 S.W.2d 434, 436 (Tex.Crim.App. 1980)). When examining a burglary case in which the only proof of identification is fingerprint evidence, an appellate court must consider whether the object was accessible to the defendant at another time. See Phelps, 594 S.W.2d at 436; Nguyen v. State, 783 S.W.2d 1, 2 (Tex.App.-Dallas 1989, no pet.). Fingerprint evidence will be insufficient if there is evidence the fingerprint could have been left at a time other than the burglary. See Phelps, 594 S.W.2d at 436; Nguyen, 783 S.W.2d at 2. But finger print evidence will be sufficient if the possibility that the defendant's fingerprints were left in a manner consistent with innocence is a highly unlikely one. See Villarreal, 79 S.W.3d at 811; Nieto, 767 S.W.2d at 909. C. Application of the Law to the Facts
Appellant asserts that two types of evidence raise serious concerns that he was the burglar. First he argues that there is evidence his fingerprints could have been left at a time other than the burglary and the fact that his fingerprints were found on the glass does not prove that he broke the glass. During closing argument, appellant offered the following alternative possibilities for the appearance of his fingerprints on the broken glass: (1) he went past, saw something out of the ordinary, and grabbed the broken glass or tried to pull the glass out of the window frame to look inside the building; or (2) he might have seen the broken glass and, because he is a homeless man, gone inside to use the bathroom or sleep. The record shows appellant is a homeless man who frequently hangs around the building. Jahwar testified that appellant did not have his permission to be in the building. The record also shows appellant's fingerprints were found on the inside and outside of the broken glass still in the window frame and on the shards of glass found inside the building. But the record also shows that Jefferson's fingerprints were found on the broken glass after the third burglary, that he is an employee of the club, he helped Jahwar barricade the broken window with a board, and he was previously convicted of burglary of a vehicle. Second, appellant argues the evidence does not show that he entered the building or support that it was physically possible for him to enter the building. The record shows the crime scene technician estimated the broken window was 11" by 16". The record also shows there were no other signs of forced entry and that it was determined the items stolen were taken out through the kitchen door. The record is silent regarding appellant's size or whether he is small enough to enter through the window opening. Further the record shows there was no alarm on the building at the time of the burglary and that other people have keys to the building. Viewing the evidence in the light most favorable to the verdict, there was evidence identifying appellant as the burglar. Fingerprint evidence is sufficient if the possibility that the defendant's fingerprints were left in a manner consistent with innocence is a highly unlikely one. See Villarreal, 79 S.W.3d at 811; Nieto, 767 S.W.2d at 909. There was sufficient evidence for a rational jury to find the essential elements of the crime beyond a reasonable doubt. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that appellant was guilty of burglary of a building. Appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support appellant's conviction for the burglary of a building. We decide appellant's second and third issues on appeal against him. IV. CONCLUSION
We conclude the trial court did not abuse its discretion when it admitted evidence of extraneous offenses during the guilt/innocence phase of the trial. We also conclude the evidence is legally and factually sufficient to support appellant's conviction for burglary of a building. We decide appellant's three issues on appeal against him. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).