No. 05-06-00823-CR.
Opinion Filed March 23, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-73062-RT. AFFIRM.
Before Justices MORRIS, WRIGHT, and FITZGERALD Opinion By Justice FITZGERALD
KERRY P. FITZGERALD, Justice.
Christopher Nicholas Wilson waived a jury and pleaded not guilty to burglary of a habitation. After finding appellant guilty, the trial court assessed punishment, enhanced by a prior felony conviction, at five years' imprisonment and a $1000 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
On August 7, 2005, Pamela Cuington left for work sometime between 6:45 a.m. and 7:00 a.m. When she walked outside her third-floor apartment and looked over the railing, she saw a man standing there. Cuington locked her front door and went down the stairs. As she passed the man, he asked her if she knew Mary. Cuington said no and kept walking down the stairs and to the bus stop. About fifteen minutes after Cuington arrived at work, she received a telephone call from the police stating her apartment had been burglarized and a television was missing. Cuington testified she did not know appellant and did not give anyone consent to enter her apartment or take her 27-inch color teleivison. Cuington testified the man she saw near her apartment had a "huge afro" and wore a "white top and dark bottoms." Cuington testified she could not positively identify appellant as the man she saw that morning. Render Morgan, who lived in the same complex as Cuington, testified he did not know Cuington. On August 7, 2005, Morgan drove into the complex sometime between 8:00 a.m. and 8:30 a.m. He saw a man "with hair all over his head" in the middle of the roadway and with a television. Morgan identified appellant as the man he saw in the parking lot. Morgan testified appellant was "bent over at the waist" with his hands "near his knees." Appellant looked "really tired." On the ground next to appellant was a "25-to 32-inch television." Morgan stopped his car and asked appellant if he needed help. Appellant said, "[n]o, I'm moving. I live right upstairs," then shook his keys at Morgan. Morgan became suspicious because he did not see a moving truck. Morgan asked appellant where he lived. Appellant said, "[u]p there where that lady [is] coming out, where Mary's coming out." Morgan saw a woman coming out of an apartment. When the woman got to the parking lot, Morgan asked her if her name was Mary. The woman said no. Then Morgan asked if she knew appellant. The woman said, "[n]o, he came to my door earlier, knocking on it, asking for Mary." Morgan testified that while he talked to the woman, appellant "throwed the TV in the trunk" and "took off at a high speed." Appellant was alone in the vehicle. Because appellant had to wait for the front gate to open, Morgan was able to write down the license plate number of appellant's vehicle. Morgan called the police. Several days later, Morgan identified a picture of appellant from a photographic lineup as the person he saw in the parking lot with the television. Morgan testified he clearly saw appellant, having observed him for about five to ten minutes before appellant fled the scene. Detective Wendell Jones testified that when he checked the license plate number on the vehicle Morgan saw leave the scene, he found out that appellant had been issued a traffic ticket while driving that vehicle sometime before the burglary. Appellant was not the registered owner of the vehicle. Jones obtained a photograph of appellant and included it in a photographic lineup he showed Morgan on August 12, 2005. Morgan told Jones that appellant was the man he saw in the parking lot with the television. Appellant did not testify during the guilt/innocence phase of the trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To obtain a conviction for burglary of a habitation, the State was required to prove beyond a reasonable doubt that appellant, without the effective consent of the owner Pamela Cuington, entered a habitation with intent to commit theft. Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). Proof of entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex.Crim.App. 1976). Discussion
Appellant argues the evidence is legally and factually insufficient because Cuington did not identify him as the man she saw near her apartment, and there is no evidence he ever entered Cuington's apartment. Appellant contends there are other reasonable alternative hypotheses for his possession of a television in the parking lot of Cuington's complex. The State responds that the evidence is legally and factually sufficient to support appellant's burglary conviction. The mere existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. See Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.-Dallas 1998, no pet.). There was circumstantial evidence presented that appellant entered Cuington's apartment and stole her property. Cuington saw a man near her apartment between 6:45 a.m. and 7:00 a.m. the morning of the burglary when she locked her front door. Cuington had not given anyone consent to enter her apartment and take her property. Cuington described the property stolen as a 27-inch television, and described the man she saw as having a "huge afro." About ninety minutes after Cuington left for work, Morgan saw appellant in the parking lot with a television. Morgan described appellant as having "hair all over his head" and appearing "really tired." Morgan described the television as a "25-to 32-inch television." When Morgan offered to help appellant with the television, appellant lied and said he was moving into the complex. Appellant claimed he lived where "Mary" was coming out, and pointed to a woman leaving her apartment. The woman did not know appellant, nor was her name Mary. Appellant fled the scene when the woman said she did not know him. The police later determined appellant had previously received a traffic ticket while driving the same vehicle he was driving when he fled the scene of the burglary. Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction for burglary of a habitation. See Watson, 204 S.W.3d at 415; Lane, 151 S.W.3d at 191-92; Clark, 543 S.W.2d at 127. We resolve appellant's issues against him. We affirm the trial court's judgment.