Opinion
No. 05-02-01614-CR.
Opinion Filed June 10, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F02-71433-RJ. AFFIRM.
Before Chief Justice THOMAS AND Justices WHITTINGTON and RICHTER.
OPINION
Kelvin Lawrence Hardin appeals his conviction for burglary of a building. Appellant waived a jury trial and pleaded not guilty before the court. After the trial court found him guilty, appellant pleaded true to two enhancement paragraphs. The trial court found the enhancement paragraphs true and sentenced appellant to ten years' confinement and a $500 fine. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We will affirm. Background On December 25, 2001, Henry Moore, a Dallas Independent School District (DISD) maintenance supervisor, was summoned to Pinkston High School at 2:30 p.m. to investigate a break- in at the school. The school was closed for winter break. When Moore arrived at the school, he saw a window in the cafeteria had been broken and the locks on the freezers and refrigerators had been pried open. No one was found inside the building. The broken window and freezer/refrigerator locks were the only damage Moore saw. Moore stayed in the building until plywood was bolted across the broken window. Moore testified the alarm was working properly when he and police left the building. The next morning, Moore arrived at the school at 6:30 a.m. He unlocked the back entrance, stepped inside, and immediately noticed the alarm box was torn off the wall. Moore initially testified that when he walked into the cafeteria and flipped on the lights, someone yelled "Hey," and he saw appellant sitting at a desk eating something. Moore later testified that when he turned on the lights, he heard someone yell, "Hey," but he did not see appellant initially. Moore was startled, so he ran to his office and called the police. When he returned to the cafeteria, he saw appellant sitting at a desk that was located eight feet from the back door and around a corner. Appellant was eating something. Moore saw food strewn all over the floors and counters in the cafeteria and kitchen areas; there was burnt food on the stove and the ovens were turned on; there was food spilled in and missing from the freezers and refrigerators; and the plywood had been removed from the broken window. Moore testified that during the thirty minutes it took for police to arrive, two other DISD employees were in the cafeteria with appellant. Moore heard appellant say to police, "they was selling plate lunches all night for $3.75 all you can eat." Moore testified that he believed appellant was including himself when he said "they." Moore further testified he heard appellant tell police there were seven or eight other people in the building who took food to a "crack house behind the Church's Chicken." Dallas police officer Tonia Black testified that when she arrived at the school, she saw appellant walking away from the building. She talked to school employees, realized appellant fit the description of the suspect, then she instructed DISD security officers to stop appellant and bring him back to the building. Black testified appellant was not under arrest at the time he was brought back to the school, but she did question him. Appellant told Black the school had been open all night and people were going in and out of the building. Black testified she saw containers of food strewn on the counters and floor, the ovens were on and food had been burnt, the freezer locks had been broken, and a wooden board had been removed from a broken window. Black further testified that after Moore showed her where appellant had been sitting, another officer found a crack pipe and drug paraphernalia nearby. Appellant testified he knew two men who had taken food from the school's cafeteria because the men sold the food to the people for whom appellant worked. Appellant testified he was working for several drug dealers as a cook when the men brought the food. The dealers purchased some of the food, but appellant did not buy anything. At about 6:00 a.m. on December 26, 2001, appellant had finished working and was en route to his mother's house. Appellant saw food on the ground outside the school, and noticed a janitor's truck parked at the school. Appellant walked to the back door, intending to tell the janitor about the two men he knew who had taken food from the cafeteria. Appellant initially testified he saw the door open and the lights came on before he reached the back door. Appellant said, "Hello," and then heard footsteps running. Later, appellant testified Moore opened the back door and invited appellant to come inside. Appellant stepped onto a porch area, closed the door, then walked into the cafeteria and talked with one of the janitors. Appellant noticed food all over the room and something burning in the oven. Appellant told the janitor about the food trail outside, then left the building after the janitor told him he could leave. Appellant testified that as he was leaving the grounds, another janitor drove up and asked him what he was doing there. That janitor talked to appellant for a few minutes, told appellant he could go, then he asked appellant to stay. When appellant walked away, campus officers drove up and told him to get in the car. Appellant testified the campus officers slammed him on the car, handcuffed him, then drove him back to the school. At the school, appellant told a police officer the stolen food was at a drug dealer's house; he did not go to the school until after the burglary; and the people who broke into the school were selling plates of food for $3.99, then they bought drugs from the dealers. Appellant testified he never sat down at a desk near the back door, and the only time he sat down was after he was brought back to the school in handcuffs and made to sit down. Appellant further testified that the only thing in his mouth was a candy bar he had taken from his own pocket, and that Moore and Black lied in their testimony. Applicable Law In a factual sufficiency review, we determine whether a neutral review of all the evidence 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). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The State was required to prove beyond a reasonable doubt that appellant, without the effective consent of the owner, entered a building not then open to the public, with intent to commit theft and did commit theft. See Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). Discussion Appellant argues the evidence is factually insufficient because it fails to show he entered the building with intent to commit theft or that he committed a theft. Appellant argues the evidence shows he only entered the building to tell someone about a trail of food outside the building, he did not try to hide or flee, and he was not in possession of any of the school's property. The State responds the evidence is sufficient to show appellant entered a building not then open to the public without permission and stole food. We agree with the State. Moore testified he found appellant sitting at a desk inside the locked school building in the early morning on the day after Christmas. There were signs that appellant had cooked food, and Moore saw appellant eating something. Appellant testified he was invited to come into the school by a janitor, he did not get any of the school's food, and he never sat down inside the school until he was told to do so by an officer after he was handcuffed. Appellant testified he only ate a candy bar that he had taken from his own pocket, but he knew two men who did take food from the school. Moore testified he heard appellant tell Black that he and other people were selling plates of food from the cafeteria throughout the night. Appellant testified he told Black that others were selling the plates of food to drug dealers, that he only cooked for the dealers, and he did not purchase any of the food. Although there were conflicts in the evidence, reconciliation of the conflicts was within the exclusive province of the fact finder. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Having reviewed all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.