Summary
holding that evidence of two extraneous burglaries was admissible to show identity because, like the charged burglary, the extraneous burglaries occurred during the day, the burglar ransacked the houses he had burglarized, and the burglar pawned the items he had stolen
Summary of this case from Mejia v. State No. 05-02-00092-CR
Opinion Filed October 20, 2003 Do Not Publish. Tex.R.App.P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-16649-PI. AFFIRM
Before Chief Justice THOMAS and Justices JAMES and FITZGERALD.
Opinion By KERRY P. FITZGERALD, Justice.
Alvin Jerome Posey appeals his conviction for burglary of a habitation. After the jury found appellant guilty, the trial court sentenced appellant to ten years' imprisonment. Appellant brings three issues asserting the evidence is legally and factually insufficient to support his conviction and the trial court erred in admitting evidence of extraneous offenses. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On November 14, 2000, between 9:30 a.m. and 6:30 p.m., a burglar kicked open the door of Christopher Lamendola's house in Carrolton and ransacked the house. Lamendola's VCR, a pearl and diamond ring, a small garnet ring, and his wife's high school class ring were missing. At 5:09 p.m. that day, someone using appellant's driver's license and matching the picture on appellant's driver's license pawned Mrs. Lamendola's class ring at Cash America No. 28. At trial, the pawnshop employee could not identify appellant as the person pawning the ring. The next day, November 15, 2000, between 6:30 a.m. and 3:30 p.m., a burglar kicked open the door of Teresa Nesbit's house and took a VCR, guns, a crossbow, silver, and a coin collection. Nesbit lived less than a mile from Lamendola. At 5:31 p.m. that day, someone using appellant's driver's license and matching the picture on appellant's driver's license pawned Nesbitt's VCR and crossbow at the same pawnshop as the day before. At trial, the pawnshop employee could not identify appellant as the person pawning the crossbow and VCR. Nine months earlier, on the morning of February 9, 2000, a burglar kicked open the back door of Roger Boos's house and stole his video camera and tripod. Appellant's mother lived next to Boos, and appellant grew up in that house. On February 9, 2000, appellant either lived with her or visited her frequently. At 10:10 that morning, someone using appellant's driver's license and matching the picture on appellant's driver's license pawned Boos's video camera and tripod at Regent Jewelry and Loan. The camera and tripod had stickers on them with Boos's name and address. When the pawnshop employee inquired about the stickers, the person presenting the items said he bought them from Boos. At trial, the pawnshop employee could not identify appellant as the person pawning the video camera and tripod. Jonathan Sanders, appellant's employer, testified appellant worked for him from 9:00 a.m. to 5:00 p.m. with up to an hour for lunch on November 13 and 14, 2000. Sanders also testified it was not unusual for homeless persons to approach Sanders and his employees to try to sell them various items. The State indicted appellant for the burglary of Lamendola's home, and the jury found appellant guilty of that offense. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, appellant asserts the evidence is legally and factually insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Recent and unexplained possession by a defendant of items taken in a burglary raises an inference that the defendant is guilty of the burglary if the possession was personal, recent, unexplained, and involved a distinct and conscious assertion of a right to the property. Tabor v. State, 88 S.W.3d 783, 786 (Tex.App.-Tyler 2002, no pet.); Garza v. State, 841 S.W.2d 19, 22 (Tex.App.-Dallas 1992, no pet.). In this case, the evidence shows someone using appellant's driver's license and matching appellant's picture pawned a ring stolen in the burglary of Lamendola's home within hours after the burglary. The pawn ticket stated the signor of the ticket declared, "I am the owner of the pledged goods and/or have the right to possess them. Pledged goods are free and clear of any encumbrance, lien or claim." The jury could conclude from the evidence that appellant was the person pawning the ring. Appellant's possession of the ring was unexplained, and his signing the pawn ticket constituted a conscious assertion of a right to the property. After reviewing all the evidence under the standards of review set out above, we conclude the evidence is both legally and factually sufficient to support appellant's conviction. We resolve appellant's first and second issues against him. EXTRANEOUS OFFENSES
In his third issue, appellant asserts the trial court erred in admitting evidence of the extraneous Nesbit and Boos burglaries. At trial, appellant objected on the ground that these burglaries were inadmissible under rule of evidence 404(b). Evidence of extraneous offenses is normally inadmissible; however, rule 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Tex.R.Evid. 404(b). Evidence of other crimes, wrongs or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Id.; Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App. 1990) (op. on reh'g). The admissibility of evidence is within the discretion of the trial court and will not be overturned absent an abuse of discretion; in other words, as long as the trial court's ruling was within the zone of reasonable disagreement, the appellate court should affirm. Montgomery, 810 S.W.2d at 391. The Nesbit and Boos burglaries are relevant to the issue of identity. Both burglaries were conducted in same manner as the Lamendola burglary: the burglar entered the house during the day when the occupants were away by kicking open the door and then ransacking the house without leaving fingerprints or other identifiable evidence. Appellant then pawned the stolen property the same day as the burglaries. The Boos burglary provides further circumstantial evidence linking appellant to the burglaries because Boos lived next door to appellant's mother, and appellant either lived with his mother or frequently visited her. We conclude the trial court did not abuse its discretion in determining evidence of the Nesbit and Boos burglaries was admissible under rule 404(b). Appellant also objected at trial that evidence of the Boos burglary should not be admitted because its probative value was greatly outweighed by the danger of unfair prejudice. See Tex.R.Evid. 403. Appellant argues the extraneous Boos burglary lacks probative value and is unfairly prejudicial because it occurred nine months before the charged Lamendola burglary. The trial court instructed the jury not to consider extraneous offenses unless it first concluded beyond a reasonable doubt that appellant committed the offense and then only to determine appellant's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, if any. Under rule 403, relevant evidence is presumed to be more probative than prejudicial; however, relevant evidence may be excluded if the danger of unfair prejudice substantially outweighs the evidence's probative value. Id.; Allen v. State, 108 S.W.3d 281, 284 (Tex.Crim.App. 2003). The appellate courts give deference to a trial court's decision not to exclude evidence under rule 403, and the appellate courts do not reverse that decision unless there is a clear abuse of discretion. Moses, 105 S.W.3d at 627; Montgomery, 810 S.W.2d at 392. In this case, the issue of the identity of the burglar was contested. The burglar left no evidence of his identity at the crime scene, and the pawnshop employee could not identify appellant as the person pawning Mrs. Lamendola's class ring. The Boos burglary provided strong circumstantial evidence that appellant committed the burglaries from which he pawned the stolen property because of the similarity of the Boos burglary to the Lamendola burglary and because Boos's house was next door to appellant's mother's house, where appellant either lived or spent considerable time. Also, the evidence of the Boos burglary was not so inflammatory that the jury would likely have disregarded the trial court's instruction not to consider the evidence except for the purposes allowed. See Montgomery, 810 S.W.2d at 392-93. We conclude the trial court did not abuse its discretion in determining the probative value of the Boos burglary was not greatly outweighed by the danger of unfair prejudice. We resolve appellant's third issue against him. We affirm the trial court's judgment.