Opinion
No. 05-07-01768-CR
Opinion Filed March 9, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80333-06.
Before Justices MOSELEY, Fitzgerald, and LANG-MIERS. Opinion By Justice LANG-MIERS.
MEMORANDUM OPINION
Appellant was convicted of burglary of a habitation and sentenced to sixteen years in prison. Appellant raises three issues on appeal arguing that the evidence was legally and factually insufficient to support his conviction, and that the trial court erred in denying his motion for new trial. We affirm the trial court's judgment.
Background
Charyl Taylor's apartment in Plano, Texas was burglarized sometime between noon and 6:00 p.m. on September 6, 2005. When Taylor walked through her apartment with the police, she noticed several items were missing, including a pillowcase, CDs, costume jewelry, her checks, and a "big Dallas [C]owboys cup" that contained change. At 6:05 p.m. that same day, Plano police officer Brian Jackson saw appellant run a red light and pulled him over. Officer Jackson testified that appellant appeared to be drinking from "a big mug" as he ran the red light. Appellant told Officer Jackson that he was driving his girlfriend's car. He gave Officer Jackson his true name, but said he did not have his driver's license on him. Appellant initially gave Officer Jackson a wrong date of birth and driver's license number, but when Officer Jackson told appellant he was unable to locate him in the computer system, appellant handed his driver's license to Officer Jackson. Appellant was taken into custody after a computer check revealed outstanding warrants for his arrest. Officer Jackson searched the vehicle and "started finding items in the car that didn't appear they belonged in there." The items included a pry bar under the front passenger seat, a white Dallas Cowboys mug with change and jewelry in it on the front passenger floorboard, "a blue pillowcase containing a large quantity of change and jewelry," and checks with the name Charyl Taylor printed on them. Officer Jackson seized the property. Taylor later went to the police station and was able to identify all of her stolen property. No witnesses testified for appellant, but his counsel introduced into evidence a probable cause affidavit that indicates that appellant's girlfriend told the police that appellant borrowed her car between 2:00 p.m. and 3:00 p.m. on the date of his arrest. Appellant was charged with burglary of a habitation. He pleaded not guilty and waived his right to a jury trial. He was found guilty by the trial court after Taylor, Officer Jackson, and another police officer testified for the State. Appellant was sentenced by the trial court to sixteen years in prison.Legal and Factual Sufficiency
In his first and second issue, appellant argues that the evidence is legally and factually insufficient to link appellant to the burglary or to the stolen property found in the car he was driving. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, No. PD-1276-07, 2009 WL 80226, at *2 (Tex.Crim.App. Jan. 14, 2009). We view all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster, 2009 WL 80226, at *2 (citing Jackson, 443 U.S. at 318-19). In a factual sufficiency review, we begin by assuming that the evidence is legally sufficient under Jackson. Id. We consider all of the evidence in a neutral light and determine whether, although legally sufficient, (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Id. Although we afford less deference to the verdict during a factual sufficiency review, we are not free to override the verdict simply because we disagree with it and instead may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Appellant argues that the evidence is not sufficient to support his conviction for burglary because the State did not directly connect him to the robbery or prove that he had control over the stolen property in the car he was driving. We disagree. Appellant was charged with burglary of a habitation. A person commits burglary of a habitation if he enters a habitation and appropriates the owner's property without the effective consent of the owner. See Tex. Penal Code Ann. §§ 30.02(a), 31.03(a) and (b)(1) (Vernon 2003 Supp. 2008). If an accused is found in possession of recently stolen property and, at the time of arrest, fails to make a reasonable explanation showing his honest acquisition of the property, the fact-finder may draw an inference of guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App. 1983). If an inference of guilt is permitted, the inference is not conclusive, and the sufficiency of the evidence must still be examined according to applicable evidentiary standards of appellate review. Id., 656 S.W.2d at 77. If the defendant offers an explanation of his possession of recently stolen property at the time of his arrest, the record must demonstrate that the explanation is either false or unreasonable before the evidence to support the conviction will be deemed sufficient. See Adams v. State, 552 S.W.2d 812, 815 (Tex.Crim.App. 1977); Ellis v. State, 691 S.W.2d 799, 800 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Whether the defendant's explanation is false or unreasonable is a question of fact to be determined by the fact-finder. Adams, 552 S.W.2d at 815. Having reviewed the evidence under the appropriate standards, we conclude that the evidence was sufficient to prove that appellant personally possessed the stolen property. Shortly after the burglary was committed, Officer Jackson saw appellant run a red light. Officer Jackson observed that appellant was looking through the contents of Taylor's mug. Other items that Taylor said were stolen from her apartment were also found in the front of the car, along with a pry bar. Appellant also argues that his possession was explained. But as the trier of fact, it was the trial court's role to determine if his explanation was true or reasonable. Adams, 552 S.W.3d at 815. And in this case, the trial court determined that appellant's explanation of why Taylor's stolen property was in the car he was driving was not true or reasonable. See Callahan v. State, 502 S.W.2d 3, 6-7 (Tex.Crim.App. 1973) (when explanation is "too tall a tale to swallow," fact-finder not bound to accept appellant's explanation of possession of recently stolen property). Based on the evidence in this case, we cannot say that the trial court's conclusion that appellant's explanation was false or unreasonable is against the great weight and preponderance of the evidence. Appellant also argues that the evidence is insufficient to prove that the property found in the car he was driving was Taylor's property because none of the property was brought to court and identified by Taylor as belonging to her. We disagree. Taylor and Officer Jackson testified about, and described, several specific items of stolen property that were recovered from the car appellant was driving, including the Dallas Cowboys mug. Taylor also testified that she identified all of her stolen property at the police station, and the property was returned to her. See Christopher v. State, 833 S.W.2d 526, 528 (Tex.Crim.App. 1992) (evidence sufficient to show appellant possessed victim's stolen property when property was given to police and victim identified and picked up his stolen property from police). Having reviewed the evidence under the appropriate standards, we conclude that the evidence is sufficient to support appellant's conviction. We overrule appellant's first and second issues.Denial of Motion for New Trial
In his third issue, appellant argues that the trial court erred in denying his motion for new trial. We review a trial court's denial of a motion for new trial under an abuse of discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006). "We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable." Id. "A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling." Id. The following facts are undisputed. One year before his trial, appellant and the State entered into a written discovery agreement, pursuant to which the State agreed to produce "all police reports" twenty days before trial. During his testimony, Officer Jackson stated that he reviewed his police report before trial. Appellant's counsel explained to the trial court that he had not seen the report before and asked for "just a moment" to review it. The court took a fifteen-minute recess. After the recess, appellant's counsel did not ask Officer Jackson any questions about his report, and passed the witness. After both sides rested, the trial court found appellant guilty and adjourned the trial before the punishment phase. Three weeks later, when the trial reconvened for the punishment phase, appellant's counsel began by moving the court to reopen the case based on the fact that Officer Jackson's report was not produced to appellant before trial. Appellant's counsel argued,Your Honor, I object that we did not receive these documents in time for us to properly develop defensive issues and theories to this new information. Had we known that information prior to the guilt/innocence phase of this trial, we could have investigated those issues. They support information known to the defense, basically, the assertion that Mr. Hill doesn't know how these things got into the vehicle. And the fact that there's other property found in there, would indicate the owner of the vehicle may have been involved in a burglary or let other people use her car that were involved in burglaries. This information, had we had it prior to the guilt/innocence phase, I could have investigated it, brought it before the Court for you then to decide does this cast reasonable doubt on the case?The trial court granted appellant's request to reopen the case and the trial was reconvened four months later, on October 29, 2007. Before calling additional witnesses, appellant's counsel moved the court to allow appellant to withdraw his waiver of his right to a jury trial based on several grounds, including "the failure to produce Officer Jackson's report." The trial court denied the motion. Appellant then presented additional testimony, including his own testimony that he did not burglarize Taylor's apartment and did not know who put the stolen property in the car he was driving. After both sides rested, the trial court found appellant guilty as charged. Appellant filed a motion for new trial, in which he argued that his "jury trial waiver was not intelligently and voluntarily made" because he did not receive a copy of Officer Jackson's report before trial pursuant to the discovery agreement. Appellant contends that if he had received Officer Jackson's report before trial, he would not have waived his right to a jury trial. In support of his motion, appellant submitted an affidavit in which he attests that "[i]f the State had produced Officer Jackson's report prior to trial, then I would not have waived my right to a jury trial." The trial court held a hearing on appellant's motion for new trial. During that hearing, appellant's counsel argued that "there are a lot more details" in Officer Jackson's report that were not included in the affidavit for arrest warrant produced before trial, but the only specific example he gave was the fact that the report stated that police also found property from a different, earlier burglary in the car appellant was driving. On appeal, appellant argues that he would not have waived his right to a jury trial if the State had produced Officer Jackson's report twenty days before trial. But appellant does not explain how or why Officer Jackson's report would have caused him to change his mind about proceeding to trial before a jury. Instead, he cites the factors for determining whether a guilty plea was involuntary due to ineffective assistance of counsel. However, appellant did not plead guilty, nor does he argue that his counsel was ineffective. Although appellant makes the conclusory statement that a decision to waive a jury trial is clearly involuntary when it is "based on the advice of counsel, and that advice is, in turn, based on misinformation supplied by the State," he does not cite any authority to support this statement. Appellant also states that "[a]n involuntary waiver of the right to a jury trial will render the resulting judgment invalid" and cites Nelloms v. State, 63 S.W.3d 887 (Tex.App.-Fort Worth 2001, pet. ref'd) in support of that statement. But as the Nelloms court explained, when material evidence favorable to the defendant is not produced by the State until during trial, "the initial inquiry is whether the defendant was prejudiced by the tardy disclosure." Id. at 891. And to prove prejudice, a defendant "must provide a reasonable probability that, had the evidence been disclosed to the defense earlier, the outcome of the proceeding would have been different." Id. Appellant does not argue, however, that the outcome of the proceeding would have been different if Officer Jackson's report had been produced earlier. Additionally, we conclude that Nelloms is instructive for another reason. In that case, the defendant waived his right to a jury trial and was convicted after a bench trial of sexually assaulting his girlfriend's sixteen-year-old daughter. During trial, the State revealed that the victim's mother was also being investigated for child abuse because the victim claimed, at one point, that her mother participated in sexually abusing her. On appeal, the defendant argued that he would not have waived his right to a jury trial if the State would have disclosed this information before trial. The court, however, noted that the defendant did not present any evidence that the outcome of the trial would have been different, "beyond the mere assertion that he would have chosen a jury trial." Id. at 892. For example, there was no evidence that the jury would have found the complainant "any less credible than the trial judge did in this bench trial." Id. The court also noted that the impeachment evidence at issue, "while impeaching the victim's earlier claim that her mother was asleep during all episodes [of sexual abuse]," still implicated the defendant's guilt. Id. Appellant acknowledges that the Nelloms court rejected the defendant's argument that his jury trial waiver was involuntary. But appellant argues that his case is distinguishable because both he and his counsel made "uncontradicted statements to the trial court" that appellant would not have been advised to waive his right to a jury trial, and would not have waived his right to a jury trial, if the State had produced Officer Jackson's report twenty days before trial. We conclude that this is not a material distinction. And as the appellant also failed to do in Nelloms, appellant in this case does not explain how or why the outcome of his trial would have been different. Additionally, the trial began on June 7, 2007. Under the terms of the discovery agreement, the police report was due to be produced to appellant twenty days before trial, or by May 18, 2007. Appellant expressly concedes in his appellate brief that he first waived his right to a jury trial on April 24, 2007. Because he first waived his right to a jury trial before any reports were due to be produced under the terms of the discovery agreement, we cannot accept his contention that his decision was based on the fact that he thought he had received all discovery due under the discovery agreement. Finally, the report is largely cumulative of Officer Jackson's testimony. The only facts that are contained in his report but were not in his testimony are that (1) when Officer Jackson pulled him over, appellant "was sweating profusely and acting very nervous," and (2) the car also contained items from another, earlier burglary. Neither of these facts, however, contradict the State's evidence that appellant was guilty of burglarizing Taylor's apartment. We also note that appellant's counsel had an opportunity to cross-examine Officer Jackson about his report, or to present further evidence when the evidence was reopened four months later. Consequently, we cannot conclude that the trial court abused its discretion when it denied appellant's motion for new trial.