No. 05-04-01100-CR
Opinion issued May 10, 2005. DO NOT PUBLISH Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-40783-QV. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
Opinion By Justice MAZZANT.
Miguel Solis Sanchez appeals his conviction for burglary of a habitation. A jury found appellant guilty and assessed punishment at five years' confinement. Appellant brings two issues on appeal arguing the evidence was factually insufficient and the court erred in communicating to the jury without the presence of appellant or his counsel. We affirm the trial court's judgment.
Factual Sufficiency
In his first issue, appellant argues the evidence was factually insufficient to support his conviction for burglary of a habitation. He argues no evidence placed him at the house that was burglarized and no evidence identified stolen property as being in his possession. We disagree. The standard of reviewing the factual sufficiency of the evidence is well established. See Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Andres Sanchez's house was burglarized on May 2, 2002. Cash, coins, jewelry, and guns were missing from his house; some of the money had been in white bank bags. Earlier that day, appellant, who Rhad previously lived with Sanchez, visited Sanchez at his business looking for work. Sanchez, however, did not offer appellant a job "because he was doing bad things." Appellant was driving a brown truck when he went to Sanchez's business. Julio Octavio Chavez, a carpenter who sometimes worked with Sanchez, testified that on the day of the burglary, he had driven by Sanchez's house and had seen a brown truck parked outside. Chavez saw two men-one he recognized as someone who knew Sanchez-taking things from the house in white bags and getting in the brown truck. Although Chavez had an expired driver's license showing a requirement for corrective lenses, Chavez said his vision had been corrected. His current license did not reflect a requirement for corrective lenses. Chavez recorded the license plate number of the brown truck and gave it to Sanchez a few days later. Sanchez drove around the area and searched for a brown truck with the license plate number provided by Chavez. He found the truck at a nearby Church's Chicken and recognized the truck as the one appellant had been driving on the day of the burglary. Sanchez spoke with Eusebio Trejo, the assistant manager, and Trejo told Sanchez the truck belonged to him. Trejo told Sanchez that appellant had borrowed his truck on May 2, 2002. According to Trejo, appellant needed the truck to deliver a camper to Sanchez. After appellant returned to Trejo's house with the truck, appellant and another man used Trejo's vacant bedroom. Trejo heard "that they were going to divide the money." Trejo later went into that room and saw cash, coins, and jewelry; some of the coins were in white bags. Trejo also said he found a receipt with the belongings; the receipt had the name Andres Sanchez on it. After Sanchez spoke with Trejo about the truck, Trejo gave the belongings that had been left behind by appellant to Sanchez. Sanchez could not remember the exact times things had happened the day of the burglary, but he thought he had been called about the burglary in the afternoon-one, two, or three o'clock. Trejo said appellant borrowed the truck "somewhere around" 12:30 p.m. Sanchez also was unable to thoroughly describe the guns that were taken. He testified he did not know much about guns. However, he said he had given specific information to the police because they asked him to and he "only supposed about it." Chavez said the brown truck he saw was "not a big truck" but looked like a "little truck." Trejo said his truck has two doors with a large cabin and described it as a large truck. Having reviewed all of the evidence in a neutral light, we conclude the evidence of appellant's guilt is not too weak to support the finding of guilt beyond a reasonable doubt; likewise, we conclude any evidence contrary to the finding is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. We conclude the evidence is factually sufficient to place appellant at Sanchez's house and to establish that stolen property was in appellant's possession. We resolve appellant's first issue against him. Communication to the Jury
In his second issue, appellant complains the trial court violated articles 36.27 and 33.03 of the code of criminal procedure by communicating to the jury without appellant's or his counsel's presence and without recording any proceedings. See Tex. Code Crim. Proc. Ann. arts. 33.03, 36.27 (Vernon Supp. 2004-05). Appellant, though, failed to preserve this issue. The giving of additional instructions to a jury by the trial court without compliance with the statutes requiring such communication to be in open court and in the presence of the defendant constitutes reversible error. Smith v. State, 513 S.W.2d 823, 829 (Tex.Crim.App. 1974). However, a defendant must bring this error to the court's attention by objection or formal bill of exception; otherwise, we presume the trial court's actions to be consistent with the statute. See Green v. State, 912 S.W.2d 189, 192 (Tex.Crim.App. 1995); Williamson v. State, 771 S.W.2d 601, 605 (Tex.App.-Dallas 1989, pet. ref'd). In the absence of a showing in the record to the contrary, we presume the trial court's response was in compliance with the statute. See Green, 912 S.W.2d at 192. There is nothing in the record to reflect either appellant's presence or lack of presence-or that of his counsel-when the court communicated to the jury. Accordingly, we presume the trial court complied with the statutes. Further, appellant's failure to object preserved nothing for our review. We resolve appellant's second issue against him. We affirm the trial court's judgment.