Opinion
NO. 01-16-00340-CR
10-24-2017
LARRY BALDOBINO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court Grimes County, Texas
Trial Court Case No. 17951
MEMORANDUM OPINION
A jury convicted appellant, Larry Baldobino, of burglary and, after finding an enhancement allegation true, it assessed his punishment at thirty-two years' confinement. In one point of error, appellant argues that the State did not present sufficient independent evidence that a burglary had occurred. Because we conclude that the State did present sufficient evidence supporting appellant's conviction for burglary, we affirm.
See TEX. PENAL CODE ANN. § 30.02 (West 2011).
Background
The complainant, Aurora Baldobino McGrath, reported a theft of jewelry from her home. She suspected her brother, appellant, of having taken it. Following an investigation, appellant was arrested and charged with burglary of a habitation.
At trial, McGrath testified that, prior to this incident, appellant had lived with her on and off. However, she had grown tired of his "freeloading" and he had not lived with her for some time. On several occasions, McGrath had caught appellant in her house without her permission. She also recounted several past incidents where appellant had stolen her possessions. For example, appellant had stolen McGrath's purse, which contained a key to her house, and he had forged checks in McGrath's name. A little more than a month before McGrath's jewelry was stolen, she and appellant had had an altercation at McGrath's daughter's house that ended when the police issued a criminal trespass warning against appellant to prevent him from going to McGrath's home. This criminal trespass warning was still in effect at the time McGrath's jewelry was stolen.
Specifically regarding the jewelry, McGrath testified that she was concerned about appellant's history of stealing from her, so she carried her jewelry and other valuables with her in purses. However, sometime around July 5, 2015, she decided to leave her jewelry at her home, hidden in a desk. Several days later, she wanted to pack the jewelry to take with her on vacation, but she discovered that it was missing. McGrath suspected appellant was involved, but she did not call the police at that time. McGrath subsequently received a phone call from her nephew, who told her that appellant had sold one of her rings to the nephew's son. After confirming that the ring appellant had sold to her family member was one of the rings stolen from her house, she reported the theft to the police on July 14, 2015.
McGrath met with Officer Garcia. She reported that she had discovered some jewelry missing from her home and that she suspected appellant of having taken it. Officer Garcia inspected McGrath's house and noted that it was cluttered, filthy, and had an unpleasant odor. Clutter prevented Officer Garcia from properly examining the back windows. There were no room to dust for fingerprints either. However, Officer Garcia noted that the clutter remained untouched, and upon examining the whole house, he found no signs of forced entry. No doors and windows appeared to have been tampered with.
Navasota Police Department Investigator Tucker joined the investigation a week later. Investigator Tucker searched a pawnshop database to see if someone had pawned McGrath's possessions. Investigator Tucker found that appellant had pawned some jewelry at a Cash America pawnshop in nearby Bryan, Texas. The evidence showed that the jewelry was sold to the pawnshop on July 12, 2015, seven days after McGrath decided to hide the jewelry in her home under a desk, and two days before McGrath learned of appellant's selling the ring to her nephew.
McGrath confirmed that the pawned jewelry was the jewelry that was stolen from her. Investigator Tucker then interviewed appellant over the phone. Investigator Tucker and appellant agreed to meet and talk to each other, and appellant told Tucker that he would "attempt to get some of the jewelry back." However, appellant did not show up for his interview, nor did he retrieve any of the jewelry.
At trial, there was also evidence of a conversation between appellant and his sister Dell Martinez that occurred while appellant was in jail following his arrest for the burglary. In the recording, appellant said, "They don't have no proof of me going into that house and they don't have no proof of me stealing that jewelry."
A jury convicted appellant of burglary and, after finding an enhancement paragraph true, assessed his punishment at confinement for thirty-two years. This appeal followed.
Sufficiency of the Evidence
In his sole issue, appellant argues that the State did not have sufficient evidence to convict him of burglary for stealing McGrath's jewelry. He argues that the State relied on the fact that appellant had possession of the jewelry, but it failed to provide independent evidence that a burglary had occurred. Appellant argues that, as a result, the evidence was insufficient.
A. Standard of Review
In reviewing the sufficiency of evidence to support a conviction, we consider all of the record evidence in the light most favorable to the verdict, and we determine whether any rational fact-finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
A jury may draw multiple reasonable inferences from the facts, so long as each inference is supported by the evidence presented at trial. Hooper, 214 S.W.3d at 16. As the reviewing court, we must examine "whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 16-17). We presume that the fact-finder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
A defendant is to be convicted of burglary if he satisfies both elements of burglary: (1) "enter[ing] a building or habitation" and (2) "commit[ting] or attempt[ting] to commit a felony, theft, or an assault." TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). "Mere possession of stolen property does not give rise to a presumption of guilt." Tabor v. State, 88 S.W.3d 783, 786 (Tex. App.—Tyler 2002, no pet.) (internal citations omitted); Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). However, in some cases, "a defendant's unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary." Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006); Dove v. State, 402 S.W.2d 913, 915 (Tex. Crim. App. 1966) (holding that defendant's unexplained possession of recently stolen property can be inferred from evidence submitted).
Forced entry is not an element of burglary; rather, burglary requires entry to be made without the effective consent of the owner. See TEX. PENAL CODE ANN. § 30.02(a); Jackson v. State, 424 S.W.3d 140, 148 (Tex. App.—Texarkana 2014, pet. ref'd) (citing Ellett v. State, 607 S.W.2d 545, 549 (Tex. Crim. App. [Panel Op.] 1980)). Lack of consent to entry in burglary prosecutions may be shown by circumstantial evidence. Jackson, 424 S.W.3d at 148 (citing Hathorn v. State, 848 S.W.2d 101, 107 (Tex. Crim. App. 1992)); see also Evans v. State, 677 S.W.2d 814, 818 (Tex. App.—Fort Worth 1984, no pet.) ("A person can make an unlawful entry by walking through an open door when the entry is without the owner's consent."); Clark v. State, 667 S.W.2d 906, 908 (Tex. App.—Dallas 1984, pet. ref'd) ("[A]n entry through an open door can constitute a burglary . . . if the building is not open to the public.").
B. Analysis
Here, appellant argues that the evidence was insufficient to support his conviction because there was no independent and direct evidence that a burglary had occurred. In essence, he argues that there is no evidence that he made an unauthorized entry into McGrath's home. However, we conclude that there was sufficient evidence for the jury to infer that appellant made an unauthorized entry into McGrath's house and committed the theft with which he was charged, as required to support his conviction for burglary.
McGrath testified that appellant no longer lived with her and that she had caught him in her house without her permission prior to the theft of her jewelry. The evidence further demonstrated that a criminal trespass warning prohibiting appellant from going to McGrath's home was in effect during the time that McGrath's jewelry was stolen. McGrath stated that she left her jewelry hidden in a desk in her home. When she attempted to retrieve it later, she discovered that pieces of it were missing. Just a few days after she discovered that her jewelry had been taken from her home, her nephew informed her that appellant had sold one of her rings to the nephew's son. The subsequent police investigation revealed evidence that appellant had also pawned some of McGrath's stolen jewelry at a pawn shop in a nearby town; and, when police interviewed him, appellant indicated that he would "attempt to get some of the jewelry back."
Because McGrath testified that the jewelry was located in her home at the time it was stolen, and there is no contrary evidence, the jury could reasonably have inferred that whoever took it had to have entered McGrath's home to commit the theft. See TEX. PENAL CODE ANN. § 30.02(a)(3) (providing that person commits burglary if he enters someone's home and commits or attempts to commit theft). Furthermore, there was sufficient evidence for the jury to infer that appellant was the person who entered McGrath's home and stole her jewelry. There was evidence that just days after the jewelry was stolen from McGrath's home, appellant sold one piece to another family member and pawned other pieces at a pawn store in a nearby town. Appellant also told Investigator Tucker that he would "attempt to get some of the jewelry back." See Poncio, 185 S.W.3d at 904-05 (holding, where evidence demonstrated that defendant sold property recently stolen in burglary, that "a defendant's unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary").
And, contrary to appellant's assertion, there was evidence supporting the jury's conclusion that his entry to McGrath's home was made without her consent. The jewelry was hidden in McGrath's home at the time it was stolen. McGrath testified that appellant had lived with her in the past but no longer did so and was not allowed to come to or enter her home. There was evidence that a trespass warning preventing appellant from coming to McGrath's home was in effect at the time of the burglary. Finally, McGrath testified that she had caught appellant in her house without her permission before on previous occasions and that appellant had stolen from her in the past. She specifically testified that, on one occasion, appellant had stolen a purse that contained a key to her home. This is sufficient evidence that appellant's entry into McGrath's home to take the jewelry was made without McGrath's consent. See Jackson, 424 S.W.3d at 148.
We hold that the evidence was sufficient to support the jury's conclusion that appellant entered McGrath's home without consent and committed a theft. See TEX. PENAL CODE ANN. § 30.02(a)(3) (setting out elements of burglary); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (setting out standard of review for sufficiency of evidence); Hooper, 214 S.W.3d at 16 (holding that jury may draw multiple reasonable inferences from facts, so long as each inference is supported by evidence presented at trial).
We overrule appellant's sole point of error on appeal.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. TEX. R. APP. P. 47.2(b).