See id. Reyes acknowledges a line of cases which hold that a defendant's explanation must be refuted in the record only if the explanation is made before trial.Espinosa v. State, 463 S.W.2d 8, 10 (Tex.Crim.App.1971) (explanation given at trial only); see Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App.1981) (op. on rh'g) (same); Grant v. State, 507 S.W.2d 732, 734 (Tex.Crim.App.1974) (same); Simmons v. State, 493 S.W.2d 937, 939 (Tex.Crim.App.1973) (same). Reyes also argues, citing Price v. State, 902 S.W.2d 677, 680 (Tex.App.-Amarillo 1995, no pet.), that the question of the reasonableness of a defendant's explanation for his possession of recently stolen property is distinct from the pre-Geesa burden on the State to disprove every reasonable hypothesis other than guilt of the defendant. See Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991).
He relies on an 1887 opinion by the Texas Supreme Court and two courts of appeals opinions issued in the 1990's. See Moreno v. State, 6 S.W.299 (Tex. 1887); Price v. State, 902 S.W.2d 677, 680 (Tex. App.—Amarillo 1995, no pet.);Hood v. State, 860 S.W.2d 931, 937 (Tex. App.—Texarkana 1993, no pet.). Because, his argument continues, there was no evidence that Reyes was given the opportunity to explain his possession of the property prior to trial, the State still bore the burden to show Reyes's trial explanation to be false or unreasonable.
a)(3) (Vernon 2003). A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon 2003). Appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1). AAppropriate" means to acquire or otherwise exercise control over property other than real property. Id. § 31.01(4)(B). A defendant's exclusive and unexplained possession of property recently stolen permits an inference that the defendant is the one who committed the offense. Rollerson v.State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). If a defendant offers an explanation as to his possession of recently stolen property, the record must demonstrate that the defendant's explanation at the time his possession is called into question is either false or unreasonable before the evidence will support a burglary conviction. Price v. State, 902 S.W.2d 677, 680 (Tex. App.-Amarillo 1995, no pet.). An accused's intent at the time of an incident must usually be inferred from circumstantial evidence rather than direct proof. Scott v.State, 202 S.W.3d 405, 408 (Tex. App.-Texarkana 2006, pet. ref'd) (citing Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)). Analysis
The possession of stolen property may justify an inference of guilt if that possession is personal, recent, and unexplained and involves a conscious assertion of control over the property. Grant v. State, 566 S.W.2d 954, 956 (Tex.Crim.App. 1978). If the accused offers an explanation, the record must show that the account is false or unreasonable, Price v. State, 902 S.W.2d 677, 680 (Tex.App.-Amarillo 1995, no pet.), and whether the explanation is false or unreasonable is a question of fact. Dixon v. State, 43 S.W.3d 548, 552 (Tex.App.-Tyler 2001, no pet.); Price v. State, 902 S.W.2d at 680. In determining whether such an assertion of a right to the trailer was made and whether appellant's explanation for the presence of the trailer was false or unreasonable, the jury had before it the following evidence: 1) the trailer was taken from the church on or about the 3rd of January, 2008, 2) the trailer then was seen in front of appellant's residence on January 3 or 4, 2008, 3) by January 5, it had been moved into the backyard behind a six-foot high wooden privacy fence, 4) there was no gate on the property through which the trailer could be moved into the backyard, 5) a portion of the fence had to be dismantled to effectuate the move, 6) appellant stated that he and his girlfriend moved it there, 7) four police officers had to dismantle a 16-foot section of the fence to remove the trailer from the ba
Hood appears to suggest that the inference cannot be relied upon if there is no evidence that the defendant was given the opportunity but failed to give a reasonable explanation for his possession of the stolen property. See also Price v. State, 902 S.W.2d 677, 680 (Tex. App.-Amarillo 1995, no pet.). We previously rejected the holdings suggested by Price and Hood in Foster v. State, No. 11-04-00252-CR, 2005 WL 2401882, at *2 (Tex. App.-Eastland Sept. 29, 2005, pet. ref'd).
When an appellate court conducts a review for legal sufficiency, the standard of review is the same in a trial to the bench as in a jury trial. See Price v. State, 902 S.W.2d 677, 679-80 (Tex.App.-Amarillo 1995, no pet.). We will apply the same standard to a factual sufficiency review.
See Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App. 1983). Foster asserts that, in order to support an inference that he was guilty of burglary, the State had the burden to show that he was given the opportunity but failed to give a reasonable explanation for his possession of the stolen property, primarily relying upon Price v. State, 902 S.W.2d 677, 680 (Tex.App.-Amarillo 1995, no pet'n), and Hood v. State, 860 S.W.2d 931, 937 (Tex.App.-Texarkana 1993, no pet'n), which in turn relied upon Moreno v. State, 6 S.W. 299 (Tex. 1887). These opinions support Foster's assertion and would appear to be in conflict with this opinion.
Whether the defendant's explanation is false or unreasonable is an issue to be decided by the trier of fact, and the falsity of the explanation may be shown by circumstantial evidence. See Adams, 552 S.W.2d at 815; Havard v. State, 972 S.W.2d 200, 202 (Tex.App.-Beaumont 1998, no pet.), quoting Price v. State, 902 S.W.2d 677, 680 (Tex.App.-Amarillo 1995, no pet.). Additionally, the defendant's explanation must be made when he is first called upon directly or circumstantially to do so.
Regardless of the lack of direct evidence placing appellant at the scene of the crime, a burglary conviction may rest upon independent evidence that a burglary occurred and the defendant's possession of recently stolen property without a reasonable explanation. See, e.g., Chavez v. State, 843 S.W.2d 586, 587-88 (Tex.Crim.App. 1992); Dimas v. State, 14 S.W.3d 453, 459 (Tex.App.-Beaumont 2000, pet. ref'd); Sweeney v. State, 925 S.W.2d 268, 270-71 (Tex.App.-Corpus Christi 1996, no pet.); Price v. State, 902 S.W.2d 677, 680 (Tex.App.-1995, no pet.); Jones v. State, 899 S.W.2d 25, 27 (Tex.App.-Tyler 1995, no pet.). Furthermore, there were substantial reasons why a rational jury could choose to believe Hill's testimony over Ciak's. Hill's testimony was consistent with the physical evidence; Ciak's was not. While Hill did receive a reduced sentence in return for his testimony, there was also evidence that he faced potential recriminations in prison as a consequence.
Appellant's explanation is no more internally logical than the explanation offered in Callahan and, under the surrounding circumstances, we hold the jury was justified in rejecting appellant's explanation as both unreasonable and false. See also Price v. State, 902 S.W.2d 677, 680-681 (Tex.App.-Amarillo 1995, no pet.). We hold that the evidence is legally sufficient to sustain appellant's conviction.