No. 05-04-00660-CR
Opinion Filed September 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-32057-L. Affirm.
Before Justices MOSELEY, FITZGERALD, and LANG.
OPINION ON MOTION FOR REHEARING
Opinion By Justice FITZGERALD.
We deny appellant's motion for rehearing. On our own motion, we withdraw our opinion of July 28, 2005 and vacate our judgment of that date. This is now the opinion of the Court. Michael Joseph Carter ("Carter") was convicted of burglary of a habitation and sentenced to thirty-eight years' confinement. Carter raises two issues on appeal. He challenges the factual sufficiency of the evidence supporting his burglary conviction. He also asserts the trial court erroneously admitted a portion of an earlier judgment that referred to a burglary offense, for which Carter was not convicted. We affirm the trial court's judgment.
Background
On the morning of April 29, 2003, an off-duty Dallas police officer was driving his truck on Loop 12 in Dallas. From that viewpoint, the officer was able to see into a car driving alongside his truck on the highway. He observed that the keyhole in the car's ignition was "hollow," i.e., no key was in the ignition. The officer knew that a hollow keyhole often meant a car was stolen. The officer reported his suspicions, and a check of the license plate indicated the car was in fact stolen. The officer, joined by a patrol car, followed the stolen car into a parking lot by a closed store. The occupants of the stolen car were detained and searched. The driver was Shamarcus Carter ("Shamarcus"), Carter's nephew. Carter was the only passenger in the car. Police found a pair of heavy winter gloves in Carter's pocket. The car was also searched. A loaded hand gun was found in the console of the vehicle, between the driver's seat and the passenger's seat. A large television was in the back seat of the car. The trunk of the car contained audio-visual equipment, including a smaller television, a stereo, videotape and DVD players, movies and games, and a cell phone. The police contacted a number stored in the cell phone and identified the residence from which the property had been stolen. The residence was in Glenn Heights, and that city's police force took over the investigation of the offense. Carter was released for the time being; the Glenn Heights police kept Carter's shoes, for reasons discussed below, but not his gloves. The police discovered the burglars had gained access to the residence by kicking open the back door: a metal door with two locks. Officers studied marks on the door and concluded that a single kick had opened the door. They concluded that the marks on the door were consistent with the size-15, black-soled shoes Carter wore when the stolen car was stopped. They also concluded the placement of the marks and the force necessary to open the door were consistent with Carter's height (well over six feet) and weight (some 300 pounds). The afternoon of the burglary, Shamarcus gave a voluntary statement to the police. The statement admitted that Shamarcus and Carter had both participated in the burglary that morning. According to the statement, Carter (a) accompanied Shamarcus to the stolen car, (b) directed Shamarcus to the residence, (c) went around the house, then came back and led Shamarcus into the house, (d) told Shamarcus to "grab stuff and go to the car," and (e) carried out and loaded all the stolen property except a small tv and VCR (which Shamarcus carried out). There was testimony at trial that Shamarcus pleaded guilty to burglary of a habitation. Carter was arrested and charged with burglary. At trial, Shamarcus recanted his voluntary statement, testifying that he had initially blamed Carter because he was young and scared, and because the police told him that Carter had "ratted on" Shamarcus. At trial, Shamarcus testified he had committed the burglary alone. Only later did he pick up Carter and drive straight to the lot where the police detained them. He testified he had not driven on Loop 12 that morning. The jury found Carter guilty of burglary of a habitation. During the punishment phase, the State offered evidence of Carter's prior criminal history. The jury assessed punishment at thirty-eight years' confinement. Carter appeals. Sufficiency of the Evidence
Carter's first issue challenges the factual sufficiency of the evidence supporting his conviction for burglary. In a factual sufficiency review, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). The evidence of Carter's guilt includes — at a minimum — Shamarcus Carter's original statement detailing Carter's participation in the burglary, Carter's presence in the car with the stolen property shortly after the burglary, and marks on the kicked-in door that comported with Carter's shoes and his size. This evidence, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt. See id. The evidence contrary to the verdict includes Shamarcus's trial testimony that he performed the burglary alone. Shamarcus — rather than Carter — was also the driver of the car containing the stolen property, and some of that property was in the trunk rather than in plain view to a passenger. Carter relies on the absence of fingerprint evidence against him, the State's failure to produce the gloves Carter purportedly had when originally detained, the officers' lack of specific experience in analyzing footprints, and the fact that the police released Carter after his initial detention. We cannot say that this evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met in this case. See id. We conclude the evidence was factually sufficient to support Carter's conviction for burglary of a habitation. Admission of Prior Judgment
In his second issue, Carter asserts the trial court erred in admitting into evidence the portion of a judgment showing that Carter had been indicted in 2002 for the offense of burglary of a habitation. In that earlier case Carter pleaded to criminal trespass, so he was never convicted of the burglary charge. Carter asked to have the language about the burglary charge redacted and objected to admission of the unredacted judgment, arguing the jury could be confused and unduly influenced by this prior allegation of the same offense. His objection was overruled when the State offered — and the trial court admitted — evidence of eleven previous offenses by Carter. This Court has previously determined that a judgment was admissible to prove a defendant's prior criminal record, when the judgment showed an indictment for one crime but conviction only for a lesser-included offense. See Webb v. State, 840 S.W.2d 543, 547-48 (Tex.App.-Dallas 1992, no pet.) (admissible judgment indicated indictment for murder but conviction for aggravated assault). We conclude the unredacted judgment in this case was admissible as well. See id. However, even if the trial court did err in admitting the unredacted judgment in this case, any error was harmless. We have detailed the evidence against Carter during the guilt-innocence phase of the trial. During the punishment phase, the State introduced evidence of eleven other prior convictions. The record does not lead us to believe that the jury gave undue weight to the complained-of indictment. Moreover, we cannot agree with Carter that he was assessed "a harsh 38-year sentence." Carter's criminal history called for him to be punished for a first-degree felony in this case. See Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2005). Accordingly, Carter could have received a sentence "for life or for any term of not more than 99 years or less than 5 years." Id. § 12.32. The 38 years he was actually assessed falls within the middle range of possible punishment. See id. We conclude the admission of the unredacted judgment did not affect Carter's substantial rights. Tex.R.App.P. 44.2(b). We decide Carter's second issue against him. Conclusion
We have decided both of Carter's issues against him. Accordingly, we affirm the judgment of the trial court.