No. 05-03-01517-CR
Opinion Issued August 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-00124-IK. Affirm.
Before Chief Justice THOMAS and Justices, FITZGERALD and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
MALONEY, Justice.
The jury convicted Robert Wayne Sillings of burglary of a habitation, and the trial court found the two enhancement paragraphs true and assessed a thirty-five year sentence. In one issue, appellant complains the evidence is factually insufficient to support his conviction. We affirm the trial court's judgment.
BACKGROUND
Complainant lived at Dickinson Place Apartments-an independent living facility for low-income, elderly, and disabled people. After a bone infection developed as a complication of Spina Bifida, complainant had both of her feet amputated and was confined to a wheelchair. In late November 2002, she left her apartment unlocked while downstairs helping the apartment administrator prepare for a Thanksgiving party. Complainant returned to her apartment that afternoon to meet with her social worker. During that visit, appellant opened complainant's apartment door, looked surprised, and inquired why she was not at the party. Shortly thereafter, complainant left her apartment to go to the party. When complainant returned to her apartment, she discovered that her stereo, thirteen CDs, and her VCR were missing. Just after two o'clock that same afternoon, appellant pawned complainant's VCR at a nearby pawn shop. Later that same day, he pawned several CDs. These CDs were never identified as belonging to complainant. WAS THE EVIDENCE FACTUALLY SUFFICIENT?
Appellant does not dispute that he pawned the complainant's VCR. Rather, he maintains that complainant gave him the VCR to pawn for her because she needed money. He argues that the State's evidence could not overcome his explanation for his possession of the property and argues the proof of guilt is outweighed by contrary proof. He maintains that no direct evidence exists to show he entered complainant's apartment to commit theft or with the intent to commit theft. The State responds that appellant's argument only attacks the jury's determining of the witnesses' credibility and their testimony's weight. 1. Standard of Review
In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence as follows: First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). 2. Applicable Law
To support appellant's conviction for burglary of a habitation, the State must prove that appellant intentionally and knowingly entered complainant's habitation without her effective consent and attempted to commit theft, actually committed theft, or entered with the intent to commit theft. See Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). The State may prove burglarious entry solely through circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex.Crim.App. [Panel Op.] 1978). Unexplained personal possession of recently stolen property together with independent evidence of a burglary may constitute sufficient evidence to support a conviction. See Chavez v. State, 843 S.W.2d 586, 588 (Tex.Crim.App. 1992). Mere possession of stolen property does not give rise to a presumption of guilt, but it will support an inference of guilt in the offense in which the property was stolen. See Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App. 1983). To warrant an inference of guilt based solely on the possession of stolen property, the possession must be personal, recent, and unexplained. Grant v. State, 566 S.W.2d 954, 956 (Tex.Crim. App. [Panel Op.] 1978). Also, the defendant must assert a distinct and conscious assertion of right to the property. Id. And he must offer the explanation when first called upon circumstantially or directly to do so. Taylor v. State, 921 S.W.2d 740, 744 (Tex. App.-El Paso 1996, no pet.). If the defendant offers an explanation for his possession of the stolen property, the State may prove the falsity of that explanation with circumstantial evidence. See Hood v. State, 860 S.W.2d 931, 936 (Tex. App.-Texarkana 1993, no pet.). Whether a defendant's explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the factfinder. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.-Texarkana 2001, no pet.). 3. The Evidence a. The Complainant
Complainant testified she knew appellant through her neighbor-appellant's girlfriend, Peggie Hawkins. On the afternoon her property disappeared, she was in her apartment with her social worker when appellant entered her apartment without knocking and without permission. Complainant had never invited appellant into her apartment, and he had never been in her apartment before that day. That was the only time complainant saw appellant on the day of the burglary. When appellant saw complainant in her apartment, he looked "a little" surprised and said, "Oh, why aren't you at the party?" She told him she was with her social worker. Appellant asked if she was going to the party. When she told him, "probably later on," appellant left. Her stereo was in her apartment during the afternoon when she met with her social worker. Complainant went to the party. When she returned to her apartment about an hour later, she saw that her stereo and CDs were missing. She called the police and her apartment administrator, Stephanie Free, and reported the missing items. Later, she realized her VCR was also gone and called the police and Free again and reported the missing VCR. When told of appellant's assertions that complainant had asked him to pawn the VCR for her, drank a lot, "been placed in a mental institution . . . for mental and drug abuse," and asked appellant and Hawkins for drugs, complainant denied having ever done so. Complainant contended that she had received substance abuse counseling when she was in Green Oaks to adjust her medication. The other time she was gone from her apartment was when she had surgery for her reflux medical condition. She never gave appellant permission to take her VCR. Although complainant took medications, she had used another's prescription medication only twice when she ran out of her own medication and was unable to obtain a refill until the following day. She had also borrowed Tylenol from other residents on several occasions, but had never asked appellant to find any pain medication for her. She received her medication through Medicaid and had never pawned property to pay for medication. Additionally, she was unable to drink around the time of the offense because of her reflux medical condition. b. Samuel McCutchan
McCutchan, a Dallas Police Department Detective, investigated the burglary. He interviewed complainant about the burglary and, because of that conversation, searched pawnshop records. He discovered that appellant pawned a VCR matching the description of complainant's VCR the day her VCR disappeared. Because complainant could not give McCutchan a serial number for her missing VCR, he contacted Hawkins and asked her to have appellant contact him. McCutchan told Hawkins that appellant had pawned a VCR the same day as the burglary. The next day, appellant contacted McCutchan and told him that complainant gave him the VCR to pawn. Until appellant said that he had pawned complainant's VCR, McCutchan could not connect the pawned VCR to complainant. Appellant and Hawkins came to the station to talk with McCutchan. Both gave McCutchan a written statement. After obtaining the statement, McCutchan told appellant he would not be filing the case directly, but would refer it to the Grand Jury. Appellant told McCutchan that he wanted to testify at the Grand Jury hearing. f. Hawkins
Appellant called Hawkins as a witness. She testified that appellant had been in complainant's apartment approximately six or ten times before the day in question. On the date of the offense, Hawkins was preparing to move to Mexico. She was selling things so she would have less to move. She had asked appellant to deliver some of the things she had sold. She first stated she was selling "[c]hina, collectibles, cut glass, [and] crystal." But, later she testified she "never said anything about china" and that she still had crystal and collectibles. Hawkins identified appellant in the security video. In the earlier video, appellant was carrying a boot box she had packed with cut glass and crystal that she had sold. In the photo taken later that day, she identified the box appellant was carrying as a storage tub she had packed with leather goods. Hawkins did not know who owned the VCR appellant pawned. Additionally, she had never seen a VCR in complainant's apartment. McCutchan had told her no case and no proof of anything existed. Consequently, he would not be referring the case to the Grand Jury. Hawkins left the party and went to her apartment around 5:00 p.m. or 5:20 p.m. Appellant was in her apartment when she got there. If appellant left again that day, it was about 7:00 p.m. or 8:00 p.m. She thought he had carried the storage tub downstairs earlier. However, she also acknowledged that it was appellant in the photo carrying the tub down the stairs at 5:53 p.m. When asked if she had anything she wanted appellant to pawn, Hawkins answered she had some CDs but did not care what was done with them. e. The Written Statements
Appellant stated that on the afternoon in question, he had heard complainant talking or moaning. He knocked on her door and did not enter her apartment until complainant told him to come in. Complainant was speaking with her psychologist. He asked if she was "okay," if she was going to go to dinner, and if she needed any help. That day, complainant had approached him and asked him to run an errand-she wanted him to pawn a VCR for money. Appellant, however, offered to make restitution if complainant would drop the criminal charges. Appellant also described complainant as having told "many lies and made all kinds of false accusations against [appellant]" and as an alcoholic and drug addict. She had "asked and pleaded" with appellant and Hawkins for prescription drugs several times over the course of the last few years. Appellant alleged that complainant had "been placed in a mental institution . . . for mental and drug abuse" twice in the sixty days preceding his statement." c. Robert Flores
Flores, the pawn shop broker, identified appellant in a photo-line-up. Flores testified that anyone could walk to his pawn shop in four or five minute from the Dickerson Place Apartments. The pawn tickets showed that appellant had pawned a VCR at 2:10 p.m. and seven CDs at 5:57 p.m. on the day of the offense. d. Stephanie Free
Free, the Dickerson Place Apartment administrator, testified she had known complainant for approximately three years. During that time, she had not known complainant to be a drug addict or alcoholic. Free testified from still photographs made from the recovered apartment's security cameras video surveillance tapes. Appellant went down a back stairwell at 2:06 p.m. carrying a box and again at 5:53 p.m. carrying a box or a storage container. Free also identified complainant coming off the elevator a couple of times throughout the day. The last time complainant got off the elevator on her floor was at 5:37 p.m. 4. Application of Law to the Facts
Appellant relies on Havard v. State, 972 S.W.2d 200, 202 (Tex. App.-Beaumont 1998, no pet.), and argues that his explanation of his possession of the VCR-that complainant gave him the VCR to pawn-required the State to disprove his explanation. We agree that recent and unexplained possession is not sufficient to sustain a conviction, but is only a circumstance of guilt and not conclusive. However, this does not apply here because when appellant first talked with McCutchan, he explained that complainant had given him the property to pawn. The State, however, can prove the falsity of a "reasonable explanation" with circumstantial evidence. See Hood, 860 S.W.2d at 936. Appellant admitted he pawned complainant's VCR. The apartment security video showed appellant carrying a box roughly the size of a VCR while exiting the apartment building by the back stairwell on the afternoon of the burglary. Four minutes after his trip down the stairwell, appellant pawned complainant's VCR at a pawnshop which was a four or five-minute walk from complainant's apartment building. Later that day, appellant again was seen on the apartment security video carrying a box down the stairwell. Again, four minutes later, appellant pawned items at the nearby pawnshop-this time seven CDs. Appellant claimed that complainant asked him to pawn her VCR Appellant's girlfriend, Hawkins, claimed complainant did not even own a VCR. She also claimed that appellant did not leave her apartment between 5:20 p.m. and 7:00 p.m. although the video tape photos showed that appellant went down the back stairwell at 5:53 p.m. Complainant denied that she asked appellant to pawn her VCR. She explained that no reason existed to buy pain medication through appellant because Medicaid provided her medications. The jury was free to accept complainant's denial of appellant's claims and reject appellant's explanation for his possession of complainant's VCR. See Dixon, 43 S.W.3d at 552. After reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment under the Zuniga standard, we cannot conclude that the contrary proof is so strong that the State did not meet the beyond-a-reasonable-doubt standard. Nor can we conclude the evidence is so weak to support a finding of guilt beyond a reasonable doubt. Any inconsistencies in the testimony go to the credibility of the witnesses and the factfinder decided those issues against appellant. We conclude the evidence was factually sufficient to support appellant's conviction of burglary. Our conclusion the evidence is sufficient to support appellant's conviction of burglary regarding theft of the VCR is dispositive. We need not address the sufficiency of the evidence regarding the stereo or CDs. See Tex.R.App.P. 47.1. We affirm the trial court's judgment.