Young v. State

Full title: VERNON RAY YOUNG, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Sep 13, 2006

No. 05-05-01607-CR (Tex. App. Sep. 13, 2006)

Opinion

No. 05-05-01607-CR

Opinion Filed September 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 204^th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-53189-HQ. Affirm.

Before Justices BRIDGES, FITZGERALD, and LANG.

OPINION

Opinion By Justice LANG.

Vernon Ray Young appeals the trial court's judgment convicting him of burglary of a habitation. Punishment was assessed by the trial court at five years' confinement and a fine of $1000. In his sole issue on appeal, Young challenges the factual sufficiency of the evidence to support his conviction. We decide Young's issue against him. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Benjamin Brooks, the complainant, testified that after being away for Memorial Day weekend, he returned home with his girlfriend to pick up his mail at 11:20 a.m. on May 30, 2005. Upon his arrival, he found the front door of his house open. Brooks entered his home and saw Young, his next door neighbor, running down the hallway. Young told Brooks he was chasing an intruder who might attempt to escape out the back door. However, Brooks had a clear view of the back door and did not believe anyone else was in the house. Brooks testified that Young was carrying an empty green or blue duffel bag. Items belonging to Brooks had been piled in corners, and his "television, electronics, and big ticket items" were unplugged with the cords wrapped up as if they were about to be carried off. Because Brooks had been preparing to move out of the house, he had packed up many personal items in boxes. He found some of the boxes had been tampered with and items had been removed. Brooks's girlfriend followed him into the house after he did not immediately return to the car. As she entered, Brooks told her to call the police. According to Brooks, Young attempted to escape at that point. Brooks chased Young, wrestled him to the ground near the back door of the house, and held him down until the police arrived. Brooks testified that because the house had been broken into the previous week, he had "booby-trapped" the house by putting a lawn chair just outside the back door to create an obstacle an intruder would have to maneuver around to enter or exit through that door. He stated that the chair had remained undisturbed until he stopped Young's attempt to get away. Brooks testified that a window had been broken in the course of the previous intrusion and a set of keys had been missing since that incident. Also, Brooks testified he would not normally be home at the time Young was found in the house. The police officer who answered the burglary-in-process call, Hans Bryson, testified that Brooks's house looked "partially ransacked" when he arrived. He stated that Brooks told him two telephones had been moved. Also, Officer Bryson identified Young as the suspect apprehended by Brooks. Officer Bryson testified that Young said he had been trying to catch a burglar he saw breaking into Brooks's house through the back door. According to Officer Bryson, there were no signs of forced entry at the front door. The back door was locked with a table in front of it. Officer Bryson testified that he did not find keys or a bag in Young's possession, that no fingerprinting was done, and that nothing was piled by the front door as is common in burglary cases. Young waived his right to a jury trial and pleaded not guilty. He testified that he did not enter Brooks's home with the intent to commit theft and did not attempt to commit theft. Young stated that from the kitchen window of his home next door, he saw a car pull up to Brooks's house. A woman, whom Young recognized as having lived with Brooks at one time, got out of the car with a man and went to the front porch. The woman then returned to the car and backed out of the driveway. A few minutes later, Young stated, he heard loud noises coming from the house. Young entered through the front door, which he said was wide-open. Once inside, Young testified, he saw a man run out the back door and easily scale Brooks's twelve-foot back fence. Young said he shut and locked the back door behind the intruder. Brooks then arrived, and Young told him a man was in the house and they should try to catch him. Young testified he was trying to be "a neighbor," and he did not call the police because the woman in the car had stayed with Brooks in the house at one time. Young acknowledged he had previously been convicted of burglary, unauthorized use of a motor vehicle, and a drug offense. He testified he had pleaded guilty in all his other cases because he was guilty, but he had pleaded not guilty and turned down a plea bargain in this case because he was not guilty. He further maintained he should be found "guilty of the Class A misdemeanor of entering a habitation without intent to commit theft and therefore just entering a habitation without consent of the owner." The trial court found Young guilty of burglary of a habitation. Young pleaded true to one enhancement paragraph, and the trial court found the enhancement true and assessed punishment.

II. FACTUAL SUFFICIENCY A. Standard of Review

Only one question must be answered by the reviewing court when conducting a factual sufficiency review: Considering all of the evidence in a neutral light, was the fact-finder rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Appellate courts must be appropriately deferential to the fact-finder's determination of the weight and credibility of witness testimony when conducting a factual sufficiency review. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Zuniga, 144 S.W.3d at 481. The weight given contradictory testimonial evidence is within the "sole province" of the fact-finder, because the fact-finder alone evaluates witnesses' credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997) (en banc). Appellate courts should exercise their fact jurisdiction only to prevent a manifestly unjust result. Id. at 407. See also Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (en banc). In conducting a factual sufficiency review, the reviewing court considers the evidence weighed by the fact-finder tending to prove a fact in dispute and compares that to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997) (en banc). An appellate court will reverse for factual insufficiency only if: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; Vasquez, 67 S.W.3d at 236. See also Johnson v. State, 23 S.W.3d 1,11 (Tex.Crim.App. 2000) (en banc); Clewis, 922 S.W.2d at 129. The standard of review is the same for both circumstantial and direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000) (en banc); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). The simple fact that contrary evidence exists is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001) (en banc). Further, while the court cannot ignore the existence of an alternative reasonable hypothesis raised by the record, its existence does not render the evidence factually insufficient. Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.-Dallas 1998, no pet.); see also Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999).

B. Applicable Law

Section 30.02 of the Texas Penal Code provides in relevant part:

(a) A person commits [burglary] if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

. . .

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). The code defines "owner" as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Tex. Pen. Code Ann. § 1.07(a)(35)(A) (Vernon Supp. 2006). Further, "possession" is defined as "actual care, custody, control, or management." Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2006). Accordingly, under the penal code's definitions of "owner" and "possession," any person who has a greater right to the "actual care, custody, control, or management" of property than the defendant can be the property's "owner." See Alexander v. State, 753 S.W.2d 390, 392 (Tex.Crim.App. 1988) (en banc); Tex. Pen. Code Ann. § 1.07(a)(35)(A), 1.07(a)(39). Ownership, like any other issue in a criminal case, may be established by circumstantial evidence. Jordan v. State, 707 S.W.2d 641, 644-45 (Tex.Crim.App. 1986) (en banc). In a prosecution for burglary, intent to commit theft may be inferred from the circumstances. Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Crim.App. [Panel Op.] 1982); Gutierrez v. State, 666 S.W.2d 248, 250 (Tex.App.-Dallas 1984, pet. ref'd). Intent may also be inferred from the defendant's conduct. Moore v. State, 54 S.W.3d 529, 539 (Tex.App.-Fort Worth 2001, pet. ref'd); McGee v. State, 923 S.W.2d 605, 608 (Tex.App.-Houston [1st Dist.] 1995, no pet.). Intent is determined by the fact-finder alone. Lewis v. State, 715 S.W.2d 655, 657 (Tex.Crim.App. 1986) (en banc); McGee, 923 S.W.2d at 608. Actual commission of a theft is not a prerequisite to the commission of burglary. Phillips v. State, 538 S.W.2d 116, 117 (Tex.Crim.App. 1976); Gutierrez, 666 S.W.2d at 250. See also Lewis, 715 S.W.2d at 657 (defendant need not obtain anything of value in order to be guilty of burglary).

C. Analysis

In his sole issue on appeal, Young contends that the trial court's judgment convicting him of burglary of a habitation was not supported by factually sufficient evidence. Young asserts that the State failed to prove Brooks's ownership of the house. In addition, Young argues, Brooks's testimony regarding the items disturbed in his home was contradicted by the State's own witness, Officer Bryson. Young further asserts that his explanation that he was chasing an intruder through Brooks's house was plausible, and that the evidence did not show intent to commit theft. The State responds that the evidence was factually sufficient to support Young's conviction for burglary of a habitation because, viewing the evidence in a neutral light, the trial court was rationally justified in finding beyond a reasonable doubt that Young entered Brooks's home, without Brooks's consent, with the intent to commit theft or attempted to commit theft. The State is required to prove beyond a reasonable doubt all the elements of the charged crime, including ownership in the case of burglary of a habitation. See Lagunas v. State, 187 S.W.3d 503, 521 (Tex.App.-Austin 2005, no pet. h.); Tex. Pen. Code Ann. § 30.02(a). Young contends that, according to Officer Bryson's testimony, Brooks said he had arrived at the "vacant" house he was moving from and had caught Young inside. The record shows, however, that: (1) Brooks testified he lived in the home and had inherited it; (2) Brooks received mail at the home; (3) Brooks was storing items in the home and moving items out; and (4) Young recognized Brooks as having rights to the home when he claimed he was trying to protect it for Brooks. In light of this evidence, we conclude the trial court was rationally justified in finding beyond a reasonable doubt that Brooks had a greater right to the "actual care, custody, control or management" of the home than Young did, and, therefore, was the home's "owner" under the Texas Penal Code. See Alexander, 753 S.W.2d at 392; Tex. Pen. Code Ann. § 1.07(a)(35)(A), 1.07(a)(39). Young further asserts that, according to Officer Bryson's testimony, the only items Brooks said had been disturbed in his house were two telephones that had been moved. Officer Bryson also testified that nothing had been piled by the front door as is common in burglary cases. Young contends Officer Bryson's testimony contradicts Brooks's testimony that items had been removed from boxes and piled in corners and that electronic "big ticket" items such as his television looked as if someone were preparing to haul them off. However, determining the weight to be given to contradictory testimonial evidence falls within the "sole province" of the fact-finder. See Cain, 958 S.W.2d at 408-09. Evidence is not factually insufficient merely because the fact-finder ruled in favor of the State. Id. at 410. We conclude that the alleged contradictory evidence was not strong enough that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. In addition, Young contends that because the house had been broken into the previous week, his assertion that he was chasing an intruder was plausible, and "[t]here was a broken window through which anybody could have easily entered or departed." However, the existence of an alternative reasonable hypothesis raised by the record does not render the evidence factually insufficient. Richardson, 973 S.W.2d at 387. Young's argument contradicts not only his own testimony that he saw the intruder exit through the back door, but also Brooks's testimony that he did not believe there was any intruder other than Young. As noted above, we must defer to the fact-finder's decisions regarding the weight and credibility of testimonial evidence. See Cain, 958 S.W.2d at 408-09. Finally, Young asserts that because there was no evidence that he was in possession of any stolen property, there was insufficient evidence that he had "any intention to steal." However, actual commission of theft is not a prerequisite to the commission of burglary. Phillips, 538 S.W.2d at 117. In this case, the State was required to prove that Young entered Brooks's home without Brooks's consent and (1) attempted to commit theft, (2) committed theft, or (3) had the intent to commit theft. See Tex. Pen. Code Ann. § 30.02(a)(1), (3). Intent may be inferred from conduct and the circumstances of the intrusion. See Mauldin, 628 S.W.2d at 795; Moore, 54 S.W.3d at 539. The record shows Young was present in the house without Brooks's consent when Brooks was not home. Further, Brooks testified items had been removed from boxes and piled up as if to be carried out, and he saw Young carrying a duffel bag. Young immediately attempted to get away when Brooks told his girlfriend to call the police. In addition, although Young claimed a man had escaped out the back door and scaled the twelve-foot fence, the back door was locked and there was a lawn chair directly outside the door. Finally, Young testified that he closed and locked the back door after he saw the alleged intruder exit through that door. However, upon Brooks's arrival, Young told Brooks a man was in the house and they should try to catch him. Sufficient evidence of intent to commit theft has been found in cases with limited disturbance of items inside the burglarized residence. See Stearn v. State, 571 S.W.2d 177, 177 (Tex.Crim.App. [Panel Op.] 1978) (finding sufficient evidence of intent where defendant was discovered in kitchen, nothing had been disturbed, and defendant immediately fled); White v. State, 630 S.W.2d 340, 342 (Tex.App.-Houston [1st Dist.] 1982, no pet.) (finding sufficient evidence of intent where defendant moved welding equipment from back of garage to the front). Based on the record, we conclude a rational fact-finder could infer intent to commit theft from Young's conduct and the circumstances of the intrusion. Viewing all of the evidence in a neutral light, we conclude the trial court was rationally justified in finding Young entered Brooks's home, without Brooks's consent, with the intent to commit theft or attempted to commit theft. The evidence was not too weak to support the finding of guilt beyond a reasonable doubt and, although contradictory evidence existed, it was not strong enough that the beyond-a-reasonable-doubt standard could not have been met. Accordingly, we decide Young's sole issue against him.

III. CONCLUSION

Having reviewed the evidence pursuant to the appropriate standard, we conclude the evidence was factually sufficient to support the judgment of the trial court. Young's sole issue is decided against him. The trial court's judgment is affirmed.