Opinion
NO. 14-16-00562-CR
06-01-2017
TALBOT OLGUIN HOWARD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas
Trial Court Cause No. 1457552
MEMORANDUM OPINION
Appellant Talbot Olguin Howard appeals his conviction for burglary of a habitation with intent to commit theft. In two issues appellant argues the evidence is insufficient to support his conviction. Finding sufficient evidence to support the conviction of burglary, we affirm.
BACKGROUND
The complainant returned home from work to find that his apartment had been burglarized. The front window was broken and the door was ajar. The complainant did not look outside, but went immediately inside. When he went inside the apartment he saw that "basically everything" was missing. The complainant testified his television, tools, clothes, and shoes were all missing. All of these items were taken from the living room and the bedroom of the apartment. His apartment appeared "destroyed." The complainant lived in the apartment by himself; his girlfriend had stayed the night before, but he otherwise had no overnight guests staying with him. The complainant did not have frequent visitors to the apartment. On the day of the incident, the complainant's girlfriend left the apartment after the complainant, but she locked the door when she left.
The broken window is two to three feet from the front door. An entertainment center was placed in front of the window. When the complainant went inside the apartment he noticed that the entertainment center had been moved. It appeared that someone broke the window and moved the entertainment center to get to the door.
The complainant saw blood right outside the front door and a little bit of blood on the carpet inside. None of the stolen items were recovered.
Officer Saied Radpour of the Houston Police Department responded to the burglary call. When Radpour arrived he saw the shattered window right next to the front door and observed that the apartment appeared neat, perhaps because it was almost empty. Radpour testified that it was obvious someone was living in the apartment because there was food on the dining table, but otherwise the apartment appeared empty because "all the stuff was taken from the apartment." Radpour noticed blood on the door knob and on a crumpled paper towel right outside the door. Radpour saw broken glass outside and inside the apartment, but did not recall seeing blood inside the apartment. Radpour collected blood evidence from the outside door knob and collected the paper towel. Radpour saw blood on the broken glass outside the apartment, but did not collect a sample. Radpour testified that the blood was wet, and appeared fresh.
The blood samples were submitted to a lab for DNA analysis. The lab reported a DNA match to appellant. Officer Leal of the Houston Police Department interviewed appellant who denied knowledge of the burglary. A recording of Leal's interview with appellant was admitted into evidence. Leal explained to appellant that he was investigating the burglary of complainant's apartment. Leal told appellant that blood from the scene was tested and that the DNA taken from the blood came back as a match to appellant. Appellant told Leal that he did not know anything about the burglary and would not put himself in that situation. Leal contacted the complainant and asked whether the complainant knew the appellant. The complainant told Leal he did not know appellant. The complainant had never seen appellant before and did not give him permission to enter the apartment. Leal obtained a search warrant to take a buccal swab DNA sample from appellant. Leal collected a buccal swab from appellant.
Jisel Bailon of the Houston Forensic Center tested the blood from the door knob and the paper towel. Bailon confirmed that both samples were positive for blood. Those samples were then sent to Bode Technologies, a private lab. Bode sent a report back to Bailon, who generated a DNA comparison report using those samples plus the known sample from the buccal swab taken from appellant. Bailon testified that appellant could not be excluded as a possible contributor to the DNA profile obtained from the blood on the door knob and on the paper towel. The probability of the contributor being someone other than appellant is approximately 1 in 2.66 sextillion for Caucasians, 1 in 1 sextillion for African Americans, and 1 in 26 quintillion for Southwest Hispanics. Bailon testified that she could not testify to a DNA "match" because she had not tested every person on the planet.
The jury convicted appellant of burglary of a habitation with intent to commit theft and assessed punishment at confinement for 32 years in the Institutional Division of the Department of Criminal Justice.
ANALYSIS
In two issues appellant argues the evidence is legally insufficient to support the conviction and the trial court erred in overruling his motion for directed verdict. We treat a complaint about a trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Mapes v. State, 187 S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). Therefore, we will address appellant's issues together.
In assessing whether evidence is sufficient to support a conviction, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We may not substitute our judgment for that of the fact finder; rather, we defer to the fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
A person commits burglary if, without the effective consent of the owner, the person: (1) enters a building or habitation with intent to commit a felony, theft, or an assault, or (2) enters a building or habitation and commits or attempts to commit a felony, theft, or assault. Tex. Pen. Code Ann. § 30.02(a)(1), (3). The term "enter" means to intrude any part of the body or any physical object connected with the body. Tex. Penal Code Ann. § 30.04(b). Proof of entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976); Jones v. State, 418 S.W.3d 745, 747 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
Appellant argues that the evidence is insufficient because the only evidence connecting him to the burglary consisted of DNA extracted from blood found on the outside of the apartment. Appellant does not challenge the evidence that the blood found on the door knob and the paper towel contained his DNA. Appellant argues there was blood inside and outside the apartment, but only the blood found outside the apartment was connected to appellant. Appellant argues, therefore, the evidence was insufficient to prove that appellant entered the apartment.
The presence of appellant's blood on the door knob of the apartment and a paper towel just outside the apartment coupled with evidence of additional untested blood on a shattered apartment window tends to prove that appellant was the person who illegally entered the apartment. The complainant testified that he did not know appellant, his apartment was locked, and appellant did not have permission to enter his apartment. Officer Radpour, who collected the blood, testified that the blood on the door knob and the paper towel was still wet. Radpour saw blood on the broken glass outside of the apartment, but did not see blood on the glass inside the apartment. The complainant testified that he saw a small amount of blood on the carpet inside the apartment. This evidence tends to prove that the person who left the blood on the doorknob and paper towel recently had been bleeding from the broken window used to gain entry into the apartment.
This evidence supports a reasonable inference that appellant was cut in the course of breaking the window of the complainant's apartment. See, e.g., Penrice v. State, 716 S.W.2d 107, 112 (Tex. App.—Houston [14th Dist.] 1986, no pet.) (concluding that, for purposes of establishing elements of burglary of motor vehicle, evidence including defendant's fingerprint on interior of driver-side door window and testimony that car had been locked and windows rolled up prior to burglary supported jury determination that defendant had entered vehicle). See also Clark, 543 S.W.2d at 127 (stating that proof of entry may be shown by circumstantial evidence).
Fresh blood was found on the outside of the doorknob, on broken glass outside the apartment, on carpet inside the apartment, and on a paper towel discarded near the front of the apartment. DNA matching appellant's profile was identified in the blood on the doorknob and the paper towel. Appellant argues it would be "speculation to assume that the blood found inside came from the same person who left blood outside." The jury, however, is permitted to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). It was reasonable for the jury to infer that the person who left blood on the doorknob and the crumpled paper towel cut himself while breaking the window to enter the apartment. It also would be reasonable to infer that the blood inside the house was left on the same day as the still-wet blood outside the apartment. Because blood was seen on broken glass outside the apartment, it was logical for the jury to conclude that appellant cut himself breaking the complainant's window, opened the door, and used a paper towel to stop the bleeding from the wound. It is also reasonable for the jury to infer that the individual bled on the carpet inside the house while removing the complainant's possessions from the apartment.
Examining the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found that appellant burglarized the complainant's apartment. See Anderson v. State, 672 S.W.2d 14 (Tex. App.—Houston [14th Dist.] 1984, no pet.) (finding sufficient evidence of entry when fingerprint was found on outside of window). We overrule appellant's issues on appeal and affirm the judgment of the trial court.
Anderson was decided before the Court of Criminal Appeals abolished the "reasonable hypothesis analytical construct." See Geesa v. State, 820 S.W.2d 154, 155, 159 (Tex. Crim. App. 1991). The court abolished the standard once it "recognized that circumstantial evidence was as valuable as direct evidence[.]" Laster v. State, 275 S.W.3d 512, 520 (Tex. Crim. App. 2009). While we find the reasoning in Anderson instructive, we do not rely on the abolished "reasonable hypothesis analytical construct" in holding that the evidence is sufficient to support the jury's finding that appellant was the individual who committed the burglary in this case.
/s/ Martha Hill Jamison
Justice Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).