Opinion
No. 04-15-00547-CR
05-11-2016
Mark John MCGEE, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR0058
Honorable Raymond Angelini, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Mark John McGee appeals his conviction for burglary of a building. McGee argues there is legally insufficient evidence that he entered a building not open to the public with intent to commit theft, attempted to commit theft, or committed theft. We affirm the trial court's judgment.
PROCEDURAL BACKGROUND
Steven Winters, a retired San Antonio Police Officer and security guard at Brooks City Base, found McGee in a facility on the base and arrested him. The State charged McGee with burglary. The case proceeded to a trial by jury, which found McGee guilty. The trial court sentenced McGee, suspended the imposition of the sentence, and placed McGee on community supervision. McGee now appeals.
LEGAL SUFFICIENCY
In reviewing the legal sufficiency of the evidence, we ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence "in the light most favorable to the verdict." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). "Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally," and we must "defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (internal quotation marks and citations omitted).
A person commits the offense of burglary if, without the effective consent of the owner, the person intentionally or knowingly enters a building with the intent to commit theft, attempts to commit theft, or does commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1), (3) (West 2011); Davila v. State, 547 S.W.2d 606, 608 (Tex. Crim. App. 1977). "If a burglarious entry is made with the intent to commit a . . . theft, the offense of burglary with intent to commit . . . theft is complete, whether . . . the crime of theft ever subsequently happens." Rodriguez v. State, 793 S.W.2d 744, 747 (Tex. App.—San Antonio 1990, no writ). "Intent can be inferred from the acts, words and conduct of the accused, and is to be resolved by the trier of fact from all of the facts and the surrounding circumstances." Id. at 748. "[T]he events of a burglary may imply the intent with which the burglar entered." Caballero v. State, 292 S.W.3d 152, 155 (Tex. App.—San Antonio 2009, pet. ref'd).
A person intends to commit theft if he intends to unlawfully appropriate property with intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2015). To "appropriate" includes "to acquire or otherwise exercise control over property other than real property." Id. § 31.01(4)(B). Appropriation is unlawful if it is without the owner's effective consent. Id. § 31.03(b). To "deprive" includes "to dispose of property in a manner that makes recovery of the property by the owner unlikely." Id. § 31.01(2)(c).
Winters testified he was patrolling the Brooks City Base and saw a suspicious vehicle backed up to a facility on the property. According to Winters, the property owner had boarded up the facility and the surrounding area of the base was not being used by the public. He stated he heard a loud metallic scraping sound coming from inside the building. Winters testified that when he investigated the sound, he saw "that the door and the wooden protective covering had been pried off." He testified he saw McGee inside with a hacksaw in his right hand. Winters then arrested McGee.
Erica Dinger, McGee's sister-in-law, testified that the day before McGee was arrested, McGee drove her and McGee's wife to Brooks City Base. She stated McGee brought a crowbar and a hacksaw with him. Dinger testified that McGee used the crowbar to open a door and entered a building on the base, sawed off part of the piping, and removed "piping, some wires, the copper wiring, [and a] panel to an electric box." Dinger testified that McGee then went to a scrapyard and sold the copper piping.
McGee testified in his defense. He stated he did not enter the building to steal anything. McGee testified that on the day he was arrested, he was concerned about vandalism and, as a peace officer who was employed for one month at the Bexar County Jail, he believed it was his duty to investigate. McGee stated he entered the building, and noticed a saw was "pinched" in a copper pipe. He testified that when Winters approached, he slipped and reached up to brace himself and, in doing so, he dislodged the saw. McGee denied that he was at the facility with Dinger the day before. He admitted on cross-examination that he was not a patrol officer, detective, or investigator, and the only place he was assigned to work was at the Bexar County Jail. McGee also stated he assumed the area was not open to the public because the "building was boarded up."
A jury rationally could have inferred from Winters's and Dinger's testimony that McGee forcibly entered the facility, which had been "boarded up" and was not publicly accessible, with a hacksaw and crowbar with the intent to remove copper piping. The jury also could have believed Dinger and found that McGee removed copper piping and sold it to a third party, making recovery of the copper piping by Brooks City Base unlikely. Although McGee provided a conflicting explanation for why he was on the property and inside the facility when Winters found him and denied having previously taken any copper pipe from the facility, we must defer to the jury's responsibility "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." See Isassi, 330 S.W.3d at 638. We therefore hold there is legally sufficient evidence to support McGee's conviction for burglary.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice DO NOT PUBLISH