Opinion
No. 06-05-00108-CR
Submitted: January 12, 2006.
Decided: January 13, 2006. DO NOT PUBLISH.
On Appeal from the 188th Judicial District Court, Gregg County, Texas, Trial Court No. 32702-A.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Donald Berford Johnson, III, was convicted by a jury for burglary of a habitation. The jury assessed punishment at six years' imprisonment and a $3,000.00 fine. The trial court sentenced Johnson in accordance with the jury's verdict, but ordered such sentence to commence "after serving sentence on parole revocation." Johnson appeals, contending the evidence establishing his identity as the burglar is factually insufficient. We affirm. The State's evidence showed that, at the time of the offense in December 2004, the victim, Corey Darnell, lived in a trailer house with his girlfriend, Megan Gore. However, during this time, Darnell was spending nights at the county jail pursuant to a work-release program and Gore was sleeping at the home of Darnell's mother. Darnell and Gore were acquainted with Johnson, having met him a few months before the burglary when they spent three days together, assisting a mutual friend to move. In the process of assisting this friend, Johnson was along when they stopped by Darnell's house to pick up some item. In the days before the burglary, Johnson called Gore on her cell phone several times. During one of those conversations, Gore told Johnson that Darnell was in jail and would be there until February and that she was staying with Darnell's mother. She did not tell Johnson that Darnell was on a work-release program. On the morning of December 20, 2004, Darnell was released from jail around 4:00 a.m. Gore picked him up, and they drove directly to the house where they lived. They first sought to enter the house through the front door, but a security chain on the inside was engaged. Darnell then went to the back door, leaving Gore at the front. When Darnell entered the house through the back door, he observed Johnson standing in the master bedroom, wearing some of Darnell's clothing. Darnell asked Johnson what he was doing, to which Johnson replied, "It's not what it looks like." Darnell then exited the house through the back door, ran to the front, and told Gore to get in the car and call the police. When Darnell returned to the back of the house, Johnson was no longer there and Darnell concluded he had fled, jumping a chain-link fence. The investigating officers found a pager stuck in the fence, which Darnell identified as belonging to Johnson. Other items were found inside the house that did not belong to Darnell or Gore, including a cell phone and charger, a watch, a ring, and clothing. Darnell testified that the items missing from the house included a new pair of overalls, a watch, a pair of tennis shoes, a pair of pants, and a toboggan. Two defense witnesses, Brian Parks and Jami LeGrand, testified they had spent the entire night of December 19-20, 2004, with Johnson at Parks' house. Parks testified he had seen Johnson's cell phone before and that the one found in Darnell's house was not Johnson's. He further testified he had never seen Johnson with any of the other property left at that house. LeGrand, a convicted felon awaiting transfer to prison, testified she was familiar with Johnson's cell phone and that the one left at Darnell's house was not Johnson's. She also testified she had never known Johnson to possess a pager or any of the other items left at Darnell's house. In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App. 2004)). If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). Applying these standards, we cannot say the evidence is factually insufficient. Darnell positively identified Johnson as the person he caught inside his house. Parks and LeGrand said this was impossible since they were with Johnson at Parks' house all night. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury apparently believed Darnell and disbelieved Johnson's alibi witnesses. The evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt. Further, the evidence contrary to the verdict is not strong enough that the beyond-a-reasonable-doubt standard could not have been met. Johnson's sole point of error is overruled. We affirm the judgment.