No. 05-03-00608-CR
Opinion Filed November 26, 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 DO NOT PUBLISH.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. F02-02095-NJ.
Before Justices MOSELEY, FITZGERALD, and LANG.
Justice FITZGERALD.
A jury convicted Felipe Osvaldo Lozano a/k/a Rafael Lopez Gonzalez of burglary of a habitation. During the punishment stage, appellant pleaded not true to two enhancement paragraphs. The jury found the enhancement paragraphs true and sentenced appellant to seventy-five years' confinement. In two points of error, appellant contends the evidence is legally and factually insufficient to support the verdict. We affirm the trial court's judgment.
Background
Lucia Mata, Isabel Guiterrez, Jose Morales, and Mata's husband lived in a ground-floor apartment located at 4802 Columbia Avenue. On August 11, 2002, Guiterrez and Morales were asleep on the living room sofa, and Mata and her husband were asleep in the bedroom. The front door was not locked. At approximately 3:00 a.m., Guiterrez was awakened by her dog barking. When she opened her eyes, she saw a man standing near the kitchen door. Guiterrez screamed to Morales that someone was in the apartment. The man ran out the front door. At trial, Guiterrez testified the lights in the apartment were not on and she did not get a good look at the man's face. Guiterrez further testified a compressor used to insert nails had been moved from a wall near the kitchen to where the man had stood. Fidel Gonzalez, the manager at the complex, testified he also worked as a security guard at night. The complex had sixteen apartments. When Gonzalez came home from work in the early morning hours of August 11, 2002, he heard someone running through the apartments, then heard someone on the roof above the second floor apartments. Gonzalez went to investigate and saw a man fall through the ceiling in apartment number 13. The man ran out the front door of the apartment. Gonzalez grabbed the man. The man jumped out of an open window in the second-floor breezeway, fell against a handrail next to the lower apartment, then got up and ran down the street. Gonzalez chased the man and flagged down a police officer. Dallas police officer Oscar Carrasco testified he was on routine patrol when he was flagged down by Gonzalez and another man who were chasing a third man wearing a torn white shirt. Carrasco identified appellant in open court as the man wearing the torn shirt. Carrasco detained appellant and drove him back to the apartment complex. Carrasco testified Guiterrez identified appellant at the scene as the man she saw standing in her apartment minutes earlier, and stated appellant did not have permission to be in her apartment. Gonzalez identified appellant at the scene as the man he chased from apartment 13. Carrasco arrested appellant and took him to jail. Applicable Law
In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.307, 319 (1979). 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 jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). The State was required to prove beyond a reasonable doubt that appellant, without the effective consent of the owner, entered Guiterrez's apartment with the intent to commit theft or entered Guiterrez's apartment and attempted to commit theft. See Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). Discussion
Appellant argues the evidence is legally and factually insufficient to prove he had intent to commit theft when he entered the apartment. Appellant argues there was no evidence of forced entry into the apartment, no evidence of a theft, and he was only guilty of criminal trespass. The State responds the evidence is legally and factually sufficient to prove appellant entered the apartment without permission and moved a nail compressor. We agree with the State. It is well established that the specific intent to commit theft may be inferred from the circumstances. See Simmons v. State, 590 S.W.2d 137, 138 (Tex.Crim. App. 1979). Further, it is well settled that unlawful entry at night raises the presumption of intent to commit theft. See Martinez v. State, 469 S.W.2d 185, 186 (Tex.Crim.App. 1971). Here, appellant entered Guiterrez's apartment without permission at 3:00 a.m. while everyone was asleep. Guiterrez's testimony that appellant moved a nail compressor from near a wall to where she saw appellant standing in her apartment is sufficient to show an intent to commit theft. See, e.g., Williams v. State, 537 S.W.2d 936, 938 (Tex.Crim.App. 1976); White v. State, 630 S.W.2d 340, 342 (Tex.App.-Houston [1st Dist.] 1982, no pet.). Having reviewed the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.