Opinion
No. 12-06-00066-CR
Opinion delivered January 24, 2007. DO NOT PUBLISH.
Appeal from the 294th Judicial District Court of Van Zandt County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and HOYLE, J.
MEMORANDUM OPINION
Donald Brian Ellis appeals his conviction for burglary of a habitation. In three issues, Appellant contends that the evidence was not sufficient to support the jury's verdict and that the trial court erred in allowing evidence of extraneous offenses to be introduced. We affirm.
BACKGROUND
Sometime around the beginning of 2005, Appellant moved onto property owned by George Richie Murphy in Grand Saline, Texas. Appellant did not pay rent to Murphy, but did some work for him in exchange for his being permitted to live on the property. Appellant first lived in a boat on the property and later moved into a brown building. The brown building had two rooms and a bathroom and contained a bed, a refrigerator, and a microwave. Appellant lived in the brown building for several weeks. In late February 2005, Murphy told Appellant that he could no longer live on the property, and Appellant moved out. On February 28, 2005, approximately one week after Murphy told Appellant that he could no longer live on the property, Murphy noticed that several items had been removed from the brown building, including three nail guns that Murphy testified were stored there. Looking for his nail guns, Murphy went to Carl's Pawn Trading Company, a pawn shop in Terrell, Texas. Murphy located four of his nail guns at that shop, including the three nail guns stolen from the brown building. The pawn shop's records showed Appellant had sold the nail guns to the pawn shop on February 28, 2005. Chester Yant, an employee of the pawn shop, knew Appellant and identified him as the person who sold the nail guns to the pawn shop. Appellant was charged with burglary of a habitation, a second degree felony. He pleaded not guilty to the charge, and the case proceeded to trial. During the trial, Murphy was asked by Appellant's counsel about other burglaries on the same property during the same time period. Murphy testified that there were three or four burglaries. Appellant established that he had been in jail at the time of at least one of the reported burglaries. In response to this line of questioning, the State asked Clarence Layne, a former Van Zandt County Sheriff's Deputy, about his investigation of the other burglaries reported by Murphy. Appellant objected to the introduction of this testimony based on Texas Rules of Evidence 403 and 404(b). The trial court overruled Appellant's objections and allowed Mr. Layne to testify that items reported stolen by Murphy in one of the uncharged burglaries were found in Appellant's vehicle at the time of his arrest. At the conclusion of the trial, Appellant was convicted, and punishment was assessed at twenty years of imprisonment and a fine of $10,000. This appeal followed.SUFFICIENCY OF THE EVIDENCE
In his first two issues, Appellant contends that the evidence was legally and factually insufficient to support his conviction. Specifically, Appellant argues there is no evidence that the nail guns were taken from a habitation and that the complaining witness was unreliable. Standard of Review Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia , 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State , 6 S.W.3d 1, 6 (Tex.App.-San Antonio 1999, pet. ref'd). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State , 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). The evidence is examined in the light most favorable to the jury's verdict. Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Johnson , 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida , 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). In reviewing factual sufficiency, we consider all the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. Santellan v. State , 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Although we are authorized to disagree with the jury's determination, even if probative evidence exists that supports the verdict, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Id. ; see Clewis v. State , 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Van Zandt v. State , 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State , 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). A verdict will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State , 93 S.W.3d 79, 87 (Tex.Crim.App. 2002); see also Watson v. State , 204 S.W.3d 404, 417 (Tex.Crim.App. 2006); Sims v. State , 99 S.W.3d 600, 601 (Tex.Crim.App. 2003). Under either the legal sufficiency or factual sufficiency standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness's testimony. Wesbrook v. State , 29 S.W.3d 103, 111-12 (Tex.Crim.App. 2000). The fact finder may choose to believe all, some, or none of a witness's testimony. Sharp v. State , 707 S.W.2d 611, 614. The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a charge would include one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A person commits burglary of a habitation if that person, with the intent to commit theft, intentionally and knowingly enters a habitation without the effective consent of the owner. TEX. PEN. CODE ANN. § 30.02(a)(1) (Vernon Supp. 2006). A "habitation" is a structure that is adapted for the overnight accommodation of persons and includes each structure appurtenant to or connected with the structure. TEX. PEN. CODE ANN. § 30.01(1)(B) (Vernon Supp. 2006). Legal Sufficiency With respect to his legal sufficiency argument, Appellant argues that the nail guns were taken from structures on the property that were not habitations and so no burglary of a habitation could have occurred. Appellant concedes that the brown building satisfies the statutory definition of habitation. He claims that it is uncontroverted that the nail guns were not stored in the brown building, but were instead stored in one of the garages on Murphy's property. However, Murphy clearly testified that he stored a Paslode nail gun, a Paslode finish nailer, and a Duo-Fast staple gun in the brown building. He testified that these nail guns were three of the four nail guns he recovered from Carl's Pawn Trading Company. We need not decide whether either of the two other buildings on the property would satisfy the definition of habitation by being appurtenant to or connected with the principal structure because the jury could have believed Murphy's testimony that the nail guns were taken from the brown building that Appellant concedes was a habitation. Viewing the evidence in the light most favorable to the jury's verdict, the jury could have reasonably determined that Appellant entered the brown building with the intent to commit theft. Therefore, the evidence was legally sufficient to support the jury's verdict. Appellant's first issue is overruled. Factual Sufficiency A review of all of the evidence without the light most favorable to the verdict reveals some evidence that is contrary to the verdict. Specifically, Appellant's two brothers both testified that they had been in the brown building and had not seen any nail guns in the building. One brother testified that there was nothing in the brown building that could have been used for storage while the other said that there was a cabinet in the brown building that could have been used for storage. Additionally, as Appellant points out, there were reasons that the jury might have doubted the testimony of the complaining witness. He failed to recall, for example, an altercation between himself and Appellant following the burglary where gunshots were exchanged. Generally, it is for the jury to determine the weight to be afforded to the testimony of a witness and to resolve any conflicts in the evidence. See Wesbrook , 29 S.W.3d at 111 (Tex.Crim.App. 2000); see also Watson 204 S.W.3d at 409 (Texas Code of Criminal Procedure articles 36.13 and 38.04 are often cited for the proposition that jury verdicts should not ordinarily be disturbed when supported by competent evidence, but criminal appellate courts in Texas have never interpreted them to wholly prohibit the limited factual review that is otherwise inherent in their appellate jurisdiction.). The issues raised by Appellant are not so troubling as to cause us to conclude that the great weight and preponderance of the evidence contradicts the jury's verdict or that the guilty verdict is "clearly wrong" or "manifestly unjust." See Watson , 204 S.W.3d at 417. The testimony of Appellant's brothers tended to support his theory that the guns were taken from a building other than a habitation. And if the jury drew the same inferences from the complaining witness's testimony that Appellant would have us adopt, they would have been skeptical of his testimony. But the jury did not have to accept the brothers' testimony nor is their testimony completely inconsistent with Appellant's guilt. Furthermore, the fact that Appellant sold the stolen items to a pawn shop was undisputed. The principal matters the jury had to believe from the complaining witness's testimony were that the nail guns were stolen and that they were stored in a habitation. A reasonable jury could have reached that conclusion despite the arguments Appellant advances about the complaining witness's credibility. Our review of the record as a whole, with consideration given to all of the evidence both for and against the jury's finding, has not caused us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant's conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict. Appellant's second issue is overruled.EXTRANEOUS OFFENSES
In his third issue, Appellant contends that the trial court erred in admitting evidence of extraneous offenses. Appellant claims that such evidence was inadmissible based on Texas Rules of Evidence 403 and 404(b). Standard of Review A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Rodriguez v. State , 203 S.W.3d 837, 841 (Tex.Crim.App. 2006); Montgomery v. State , 810 S.W.2d 372, 390-91 (Tex.Crim.App. 1990). The trial court is in the best position to decide questions of admissibility, and we will uphold a trial court's decision to admit or exclude evidence if it is "within the zone of reasonable disagreement." Rodriguez , 203 S.W.3d at 841. A determination is beyond the zone of reasonable disagreement if by no reasonable perception of common experience could it be concluded that the proffered evidence had a tendency to make the existence of a fact of consequence more or less probable than it would be otherwise. Montgomery , 810 S.W.2d at 391. If the trial court's ruling on the admission of evidence is correct under any theory of law, the trial court's decision should not be disturbed even if the trial court gives the wrong reason for its ruling. See Romero v. State , 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Applicable Law Rule 404(b) of the Texas Rules of Evidence provides in pertinent part as follows:Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .TEX. R. EVID. 404(b). "Relevant evidence" means 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. Evidence that is not relevant is inadmissible. TEX. R. EVID. 402. In Rankin , the court of criminal appeals explained the relevancy inquiry necessary under 404(b) as follows:
Under Montgomery , then, it appears that "fact of consequence" includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred. An evidentiary fact that stands wholly unconnected to an elemental fact, however, is not a fact of consequence. A court that articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how the evidence makes a "fact of consequence" in the case more or less likely.Rankin , 974 S.W.2d at 710. Extraneous evidence may be admissible to show identity when it is an issue in the case. See Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996). Cross examination of the State's witnesses can place identity at issue. Id. To be relevant to identity, the extraneous offenses must be "so similar to the offenses charged that the offenses are marked as the accused's handiwork." Id. Furthermore, evidence of extraneous offenses may be admissible to rebut a defensive theory. Powell v. State , 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). Even if the trial court determines that the evidence of extraneous offenses is admissible, the court must conduct a balancing test to determine if the probative value of the evidence is substantially outweighed by one or more of the named dangers. Rodriguez , 203 S.W.3d at 843. Factors to be considered in making this determination include the probative value of the evidence, the potential the other crimes, wrongs, or acts have to impress the jury in some irrational but indelible way, the time needed to develop the evidence, and the proponent's need for the evidence. Id. ; see also TEX. R. EVID. 403. Analysis Under the facts of this case, the decision to allow evidence that Appellant had items taken in a subsequent burglary from the same victim in his possession when he was arrested is not outside the zone of reasonable disagreement. Murphy's property was burglarized at least four times. The first time was the charged offense. Appellant sold the fruits of that burglary to a pawn shop. After that burglary, there were one or two other burglaries (middle burglaries) that occurred before Appellant was arrested. The fruits of those burglaries, or some of them, were recovered in Appellant's vehicle when he was arrested. It is these burglaries that the State sought to introduce as extraneous offenses. Finally, there were two other burglaries that occurred during a time that Appellant was in police custody. The State argues that the extraneous offense evidence is admissible because identity was at issue. We cannot accept the identity argument in this context. To be relevant to identity, evidence of an extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant's "distinctive and idiosyncratic manner of committing criminal acts," akin to a "signature." See Page v. State , Nos. PD-1744-05, PD-1745-05, 2006 Tex. Crim. App. LEXIS 2446, at *8 (Tex.Crim.App. Dec. 20, 2006). These burglaries were of the same structure, or at least from structures on the same real property, but there is no other commonality between the charged and the middle burglaries that shows them to be of the same handiwork or to be characterized by a distinctive and idiosyncratic manner of commission. The fact that there were other similar burglaries after Appellant was arrested further undercuts the argument that these burglaries were necessarily Appellant's handiwork. The State also argues that the evidence was admissible to rebut a defensive theory of the case. Appellant asked Murphy about other burglaries that occurred after the initial burglary. This questioning was directed at the burglaries that occurred after Appellant was in custody but included the middle burglaries. The State argues persuasively that this line of questioning had the potential to create the false impression that there was a single burglar who committed all of the burglaries, including the burglary charged in the indictment. To rebut this theory, the State sought to introduce evidence that suggested Appellant had been involved in the middle burglaries. In this context, the trial court's decision to admit evidence of Appellant's involvement in the middle burglaries to rebut the single burglar defense was not outside the zone of reasonable disagreement. The probative value of this evidence outweighs the danger of any unfair prejudice. The probative value of the evidence under these circumstances is high as Appellant's possession of the stolen property is strong evidence refuting his theory that all of the burglaries were committed by another person. This certainly damaged Appellant's single burglar defense, but we are not persuaded that there was any unfair prejudice. In fact, the State would have been unfairly prejudiced if the evidence had not been admitted as Appellant would have been free to argue that another person committed all of the uncharged burglaries and, inferentially, the charged burglary. The fact that Appellant had stolen goods in his possession does not appear to be the kind of evidence, in this context, that would impress a jury in some "irrational but nevertheless indelible way." See Montgomery , 810 S.W.2d at 390. The State's need for the evidence was real, and occasioned by Appellant's implicit attempt to shift blame for the middle burglaries to another person. We perceive little danger of confusion of issues, and the time needed to develop the evidence was minimal. The decision to admit the extraneous evidence was not outside a zone of reasonable disagreement. We overrule Appellant's third issue.