No. 05-08-01489-CR
Opinion Filed September 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-00754-NV.
Before Justices MORRIS, BRIDGES, and MURPHY.
Opinion By Justice MURPHY.
A jury convicted Leroy Curry of burglary of a motor vehicle and with two or more prior convictions for burglary of a motor vehicle. The trial court assessed punishment, enhanced by prior felony convictions, at eight years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The State was required to prove beyond a reasonable doubt that appellant, without the owner's effective consent, entered or broke into a vehicle with intent to commit theft, and appellant had been previously convicted two times of the offense of burglary of a motor vehicle. See Tex. Pen. Code Ann. § 30.04(a), (d)(2)(A) (Vernon Supp. 2008). Evidence Presented
On April 1, 2008, Regina Richard parked her white Mitsubishi Mirage in a lot between Wood and Jackson Streets in downtown Dallas. She parked in the lot at about 7:50 a.m., removed the faceplate on the CD player and put it under the driver's seat, and exited the vehicle. Richard testified she did not notice anyone watching her or hanging around the lot. Richard locked the doors before she walked to her nearby office. Richard received a telephone call from her insurance company at 11:30 a.m. instructing her to contact the police because her vehicle had been burglarized. After making contact with an officer, Richard returned to her vehicle and saw that the driver's-side back window was broken out and her car stereo was missing. Richard testified she did not give anyone permission to enter her vehicle. Sergeant Robert Crider testified he provided surveillance on several parking lots in the central business district due to numerous break-ins and burglaries of coin-operated machines in that area. On April 1, 2008, Crider stood on the top floor of a seven-story parking garage in the 1700 block of Wood Street watching the lots through binoculars. At approximately 10:15 a.m., Crider saw a man, who was later identified as appellant, walking through the parking lot pulling on the door handles of several parked vehicles. Appellant wore black pants and a shiny black jacket. Crider saw appellant climb into the open bed of a pickup truck, lie down, and try to open a tool box. Crider radioed for other officers in the area to go to that specific lot. After failing to open the tool box, appellant got out of the truck bed and went into a nearby parking garage. The other officers looked for appellant, but did not find him at that time. The officers resumed patrolling the area. Ten minutes later, Crider saw appellant return to the lot. Appellant was wearing the same clothing Crider has seen earlier. Crider testified that although he was watching appellant through binoculars, he could not see his facial features. Crider saw appellant approach a small, white vehicle holding something in his hand. Appellant broke out the driver's-side back window with the object in his hand. Appellant opened the back door, climbed into the back seat, got out and opened the front door, then got into the driver's seat. Crider radioed for other officers to return to the lot because there was a burglary in progress. While waiting for the officers, Crider saw appellant exit the vehicle and walk toward city hall. Crider saw appellant carrying some indiscernible object in his hand. Crider kept his eyes on appellant as the officers closed in and arrested him. Crider testified he watched appellant continuously for about fifteen minutes from the time appellant entered the parking lot until he was apprehended by other officers except for a thirty-second period when a building obscured his view. Crider guided the officers to appellant via their radios and confirmed with the officers that they had approached the right individual. Crider went to the lot and showed the other officers which vehicle appellant had burglarized. The officers found two large "Master locks" fastened together had been used to break the vehicle's window. The officers looked for the car stereo, but it was never recovered. Crider testified there were several dumpsters, in addition to boxes and trash bags left by some homeless persons, along the route that appellant had walked where he could have thrown the car stereo. Officer Brynley Wetton testified that on April 1, 2008, he and his partner were driving the "paddy wagon," a large police van used to transport intoxicated individuals, and patrolling the central business district. At 10:30 a.m., Wetton heard Crider on the radio saying he had observed a suspicious man in one of the downtown parking lots. Wetton went to the area and saw Crider on the top level of a parking garage. Crider described the suspect as a man "in his late 40s, early 50s, bald, wearing shiny black leather jacket and black pants." Other officers, including bicycle officers, searched the area but did not locate the suspect. Everyone left the immediate area, but remained nearby. After about twenty minutes, Wetton heard Crider on the radio saying he was watching a burglary of a vehicle in progress. Crider remained on the radio, directing the officers to where the suspect was walking, and repeating the suspect's description. Wetton got out of the police van when he saw appellant, who matched the suspect's description, walk from around a building. Appellant did not have anything in his hands. Wetton asked Crider if appellant was the suspect he saw committing the burglary. Crider confirmed that appellant was the individual who had committed the burglary. Wetton followed appellant, who had continued walking down the street. Two other officers arrested appellant near the city hall building. Wetton testified Crider showed him and other officers where the burglary had occurred. Wetton saw a white Mitsubishi with a broken rear-vent window. When he looked inside, he saw two Master padlocks that were locked together lying on the back seat. Wetton tracked down the vehicle owner from a telephone bill he found inside the vehicle. Wetton testified that although there were a few homeless people around the area, appellant was the only person who matched the suspect's description and clothing as described by Crider. Officer James Pierce testified he drove the police van with Wetton on April 1, 2008. He heard Crider's radio call about a suspicious man walking through parking lots pulling on car doors and smashing a window on a white vehicle. Crider described the suspect, his clothing, and his direction of travel. Pierce drove toward the suspect's location. When he arrived, Pierce dropped off Wetton to pursue the suspect on foot while he continued driving around the block in case the suspect ran. As Pierce drove down the street and turned the corner, he saw the suspect, who was later identified as appellant, walking near the city hall building. A patrol car pulled up near appellant as Pierce stopped the van and got out. Pierce and another officer arrested appellant. Appellant's signed stipulation that he has been previously twice convicted of burglary of a motor vehicle as alleged in the indictment was published to the jury. Appellant did not present any evidence at the guilt-innocence phase of the trial. Discussion
Appellant contends the evidence is legally and factually insufficient because he was misidentified as the suspect. Appellant asserts that because Crider could not see the suspect's facial features, appellant was not in possession of any property stolen from the vehicle, and he did not try to flee from the scene, the verdict is contrary to the great weight and preponderance of the evidence. The State responds that the evidence is legally and factually sufficient to support the verdict. The jury was free to accept or reject any and all of the officers' testimony and to draw reasonable inferences from the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Rollerson, 227 S.W.3d at 724. The jury heard Crider's testimony that although he could not see appellant's facial features, he watched appellant for the entire time that appellant tried to open the doors to various vehicles in a parking lot, lay in the back of a truck and tried to open its tool box, and used an object to break a window in a parked vehicle to gain entry. Crider testified he observed appellant for approximately fifteen minutes, and he transmitted to other officers over his police radio the description of appellant's clothing and appearance. Crider remained on his radio as he described the route appellant traveled, and confirmed to the other officers that they had approached the same individual he had seen break into a vehicle. Wetton testified appellant was the only individual in the area who matched the suspect's description and clothing. Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's convictions. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509. We resolve appellant's two issues against him. We affirm the trial court's judgment.