Opinion
No. 05-07-01264-CR
Opinion filed March 9, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 380th District Court, Collin County, Texas, Trial Court Cause No. 380-81020-07.
Before Justices BRIDGES, Fitzgerald, and LANG. Opinion By Justice BRIDGES.
OPINION
Rodger Glen Clark appeals his burglary of a habitation conviction. The trial court convicted appellant and sentenced him to two years' confinement. In four issues, appellant argues the evidence is legally and factually insufficient to show the underlying burglary was "recent" or that his possession of the proceeds of the underlying burglary were "unexplained." We affirm the trial court's judgment. On January 11, 2007, Randall Will had lunch with his wife. When his wife left their home, she left the garage door open. At approximately 1:00 or 1:30 p.m., Will's wife returned home and discovered an air compressor and a power washer had been stolen out of the garage. Will had used the compressor and washer "within a day or two of that day," but he believed they were in the garage when he left for work that morning. The Wills reported the burglary to the police. Plano police detective Gary Griffin verified what was stolen from Will's garage and checked pawn shops in the Dallas area to see if anything matching that description had been pawned. Griffin determined that appellant, using a Louisiana identification card, had pawned the compressor and washer and a saw and ladder at 5:16 p.m. on January 11, 2007. The pawn shop was located in Dallas, approximately forty or forty-five minutes from Plano where the burglary took place. Will subsequently identified the compressor and washer and paid $300 for their return. James Mitchell, the pawn shop employee who pawned the compressor and washer, identified appellant from a photographic lineup. Appellant was subsequently arrested and charged with burglary of a habitation. Appellant testified he came into possession of the compressor and washer when a man in a pickup truck came to the Fina gas station where appellant was panhandling and said he was looking for "a guy named K.C." K.C. had supposedly "pawned some stuff" for the man before, and the man was "looking for somebody that had a [sic] ID." Appellant said he had an ID and agreed that he would pawn the merchandise. The man drove appellant to a pawn shop where appellant "pawned stuff" and the man paid him $40 and dropped him off. Appellant did not think the "stuff was stolen." The man "said it was his stuff" and told appellant his license was revoked and he could not pawn it himself. At the conclusion of the bench trial, the trial judge convicted appellant of burglary of a habitation. This appeal followed. In his first, second, third, and fourth issues, appellant argues the evidence is legally and factually insufficient to support his conviction. In a legal sufficiency review, we view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). Specifically, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. As the exclusive judge of the weight and credibility of the witnesses' testimony, the jury is free to believe or disbelieve evidence from either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (stating that the factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). A person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation and commits theft. Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003). A defendant's unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. Poncio v. State, 185 S.W.3d 904, 905 (Tex.Crim.App. 2006). In order to warrant an inference of guilt from the evidence of possession alone, such possession must be personal, recent, and unexplained, and must involve a distinct and conscious assertion of the right to the property by the defendant. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex.Crim.App. 1984). Additionally, the defendant's explanation must be made when he is first called upon directly or circumstantially to do so. See Chavez v. State, 843 S.W.2d 586, 587 (Tex.Crim.App. 1992). If the defendant fails to offer an explanation when first called upon to do so, the State is not required to refute an explanation for the first time at trial. See Valdez v. State, 623 S.W.2d 317, 322 (Tex.Crim.App. 1979); Simmons v. State, 493 S.W.2d 937, 939 (Tex.Crim.App. 1973). Here, the record shows appellant pawned the stolen compressor and washer at a pawn shop approximately forty minutes away within approximately four hours of the time they were stolen. At the time he pawned the compressor and washer, appellant presented a valid Louisiana identification card and signed a pawn ticket stating he was the owner of the pledged goods or had the right to possess them. Prior to trial, appellant offered no explanation for his possession of the stolen compressor and washer during his arrest, detention, and transport to Collin County. Under these circumstances, we conclude the evidence was legally and factually sufficient to show the underlying burglary was "recent" and that appellant's possession of the proceeds of the underlying burglary were "unexplained." See Jackson, 443 U.S. at 318-319; Watson, 204 S.W.3d at 415. As to appellant's explanation for his possession of the stolen goods for the first time at trial, the record shows appellant was arrested for the underlying burglary on May 30, 2007 and made no explanation for his possession of the stolen compressor and washer until trial on August 27, 2007. Because he did not make his explanation at the time he was first called upon directly or circumstantially to do so, we conclude the State was not required to refute his explanation made for the first time at trial. See Chavez, 843 S.W.2d at 587; Valdez, 623 S.W.2d at 322; Simmons, 493 S.W.2d at 939. Accordingly, we conclude the evidence was legally and factually sufficient to support his burglary of a habitation conviction. See Poncio, 185 S.W.3d at 905 (appellant's exclusive and unexplained possession of property recently stolen in burglary in conjunction with fact appellant pawned property very close to burgled home sufficient to support burglary of a habitation conviction). We overrule appellant's first, second, third, and fourth issues. We affirm the trial court's judgment.