Opinion
No. 09-03-342 CR.
Submitted on April 2, 2004.
Opinion Delivered April 14, 2004. DO NOT PUBLISH.
On Appeal from the 159th District Court, Angelina County, Texas, Trial Cause No. 23,355.
Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
MEMORANDUM OPINION
A jury convicted Johney Fred Bell, Jr. of burglary of a habitation and assessed punishment at ten years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a fine of $1,000. Bell appeals claiming the evidence is factually insufficient to support the jury's verdict. On or about September 30, 2001, Kim Harrington returned home and found a barbecue pit and ice chest were missing from outside the home and someone had broken into her home because the door was broken. Over the next several days, Harrington received phone calls from Bell and during those conversations he told her that he had taken the barbecue pit and ice chest, and a file cabinet, CDs, and photo album from inside the house. The phone calls were recorded and the tapes played for the jury. Harrington contacted the police. Officer Steven Abbott responded and went to Harrington's home where he viewed the broken door and made a report. Abbot also listened to the tapes Harrington had made of Bell's phone calls. Although Bell had stayed with Harrington on and off prior to May of 2001, she testified that in August of 2001, or earlier, the locks were changed. Harrington had also had the police issue a warning to Bell against criminal trespass in August. Michael Scott Davis testified he was with Bell on the night in question. They drove around looking for Harrington and Davis drove Bell by a house on "MacGregor or Russell." They met up with "Eric," who drove Davis' truck back to the house. Bell said he was going to pick up some of his things and went inside. Bell returned with CDs, a barbecue pit and an ice chest. When they unloaded the truck, there was also a file cabinet. Evidence was presented that Bell entered Harrington's home without her consent and removed a file cabinet, CDs, and a photo album. See TEX. PEN. CODE ANN. § 30.02(a)(3) (Vernon 2003). Appellant's brief does not refer this court to any evidence Bell had consent. Counsel points out that Harrington waited several days to report the burglary and challenges the credibility of the State's witness, Michael Scott Davis, and the victim. As the trier of fact, the jury is the ultimate authority on the credibility of witnesses and the weight to be given to their testimony and it is for the jury to resolve any conflicts and inconsistencies in the evidence. See Thompson v. State, 12 S.W.3d 915, 924 (Tex. App.-Beaumont 2000, pet. ref'd) (Stover, J., concurring). The fact that Harrington did not report the burglary until after receiving Bell's phone calls does not render the evidence insufficient. A neutral review of all the evidence, both for and against the jury's finding, does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, nor does it demonstrate that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). Accordingly, we find the evidence is factually sufficient to support Bell's conviction. Issue one is overruled. The judgment of the trial court is AFFIRMED.
Harrington's name was Kim Von Heimberg at the time of the offense.