DEMETRIA ORLANDO MALONE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED as modified; Opinion issued November 28, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00186-CR
 
 
No. 05-06-00187-CR
No. 05-06-00188-CR
No. 05-06-00189-CR
 
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DEMETRIA ORLANDO MALONE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F04-51236-WJV, F04-51235-WJV, F04-53168-LV, F04-72821-MV
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OPINION
Before Justices Morris, Whittington, and Richter
Opinion By Justice Morris
        In the first two of these four cases, Demetria Orlando Malone waived a jury and pleaded guilty to two burglaries of a habitation. Pursuant to the plea agreements, the trial court sentenced appellant to ten years' confinement, probated for five years. The State later moved to revoke appellant's community supervision, alleging appellant had committed a new burglary offense. A jury trial commenced on the new burglary offense and an arson offense. The trial court carried the motions to revoke along with the jury trial. After the jury found appellant guilty of the new burglary and arson offenses, the trial court also granted the State's motions and revoked appellant's community supervision in the two previous burglary cases.
        In two issues, appellant contends the evidence against him is factually insufficient to support his convictions for burglary of a habitation and arson, and the trial court abused its discretion in revoking his community supervision in the two previous burglary cases. We affirm the trial court's judgments in the two initial burglary of a habitation cases. We affirm the trial court's judgments as modified in the new burglary of a habitation and arson cases.
Factual Background
 
        Demrie Henry, the complainant, testified that on June 19, 2004, someone burglarized her home and set it on fire while she was out of town. At 5:30 p.m. on that date, Henry received a call from her alarm company notifying her that her house alarm had been activated. Henry called her brother, who lived a short distance from her house, and asked him to check the house. The brother only checked the perimeter of Henry's house because he did not have a key. He told Henry he saw three boxes on the front porch when he arrived, but everything appeared normal. The brother took the boxes with him when he left.
        Sometime after midnight, Henry received a call from a neighbor who said Henry's house was on fire. Henry immediately drove back to Dallas. When she saw the house later that morning, Henry learned it had been ransacked and burned. Among the missing items were a thirty-six-inch television, a silver collector's coin, a .25-caliber pistol, credit cards, a bank book, and a black Land Rover. Henry testified someone had broken out a bedroom window in the back of the house. The bedroom window was not visible without looking over a high fence that surrounded the back of the house.
        Elaine Olinger lives across the alley from Henry. At 3:00 p.m. on June 19, 2004, Olinger walked up the alley looking for a repair truck she was expecting. When Olinger stepped out from the alley onto the cross-street, she met appellant face-to-face. Appellant said, “Oh, you scared me,” and quickly kept walking. A few minutes later, Olinger walked back down the alley. She got into her car parked in the driveway to drop her daughter Audry at the movies. Olinger and Audry saw appellant walking down the alley close to Henry's house. Appellant looked down at the ground, then sat on a retaining wall next to Henry's house when he saw them. Olinger testified appellant did not look at them while they waited at the end of the alley for traffic. She and Audry studied appellant because he appeared out of place in their neighborhood.
        When Olinger returned home fifteen minutes later, she drove down the alley and circled the block looking for appellant but did not see him again. Sometime after midnight, she learned Henry's house was on fire. Olinger went to the burning house and told firemen about seeing appellant earlier. Two days later, Olinger and Audry went to the police station and looked at a photographic lineup. They both identified a photograph of appellant as the person they saw in the alley near Henry's house.
        Dallas police officers Shawn Frazee and Tracy Glenn testified they were dispatched to Henry's house at 5:00 p.m. on June 19, 2004 on an alarm call. When they arrived, Frazee saw a man lingering in a vacant field across the street from Henry's house. Frazee testified that although the field was called Moss Park, there were no benches, swings, or equipment there. Frazee and Glenn checked the outside of the residence, but did not notice anything unusual. Frazee placed a false alarm sticker on the front door, and as he got in his vehicle, he noticed the man was still walking around in the field across the street.
        The next morning, Frazee and Glenn learned Henry's house had been burglarized and burned around midnight and a black Land Rover had been stolen. While on routine patrol that afternoon, they saw a man driving a black Land Rover that did not have a license plate or temporary tag. Frazee pulled the vehicle over. Appellant was alone in the vehicle, and a large television set was in the back seat. Frazee testified he recognized appellant as the man he had seen the previous day lingering across the street from Henry's house. Appellant told them the vehicle belonged to his aunt who was out of town. When Frazee asked for the vehicle registration, appellant gave Frazee a service receipt that had Henry's name and address on it. After appellant stepped out of the vehicle, he ran from the scene. Glenn chased appellant on foot while Frazee followed in the patrol car.
        Appellant was apprehended nearby by a third officer. He struggled until he was handcuffed. Frazee and Glenn transported appellant to an interview room in the police station. Both Frazee and Glenn testified they smelled gasoline on appellant's clothing while in the room.
        Detective Dwayne Boy testified that when officers searched appellant, they found a silver collector's coin in appellant's pocket. Several items were found inside Henry's vehicle, including a television, a .25-caliber pistol, a bank book, and credit cards. Henry identified the vehicle and the property as hers. When Boy interviewed appellant at the police station, appellant was belligerent, denied doing anything wrong, and had a strong odor of gasoline on his clothing.
        Captain Robert Baker testified he determined there were three different fires set inside Henry's house, but they did not connect. The fire pattern indicated three fires were intentionally set in the living room, utility room, and garage. A cable box outside of the house had been ripped open, an alarm panel inside the house had been torn from the wall, and an accelerant had been poured on pieces of carpet and ignited.
        Vicki Hall, an analyst at the Southwestern Institute of Forensic Sciences, tested carpet samples from the house's living room, utility room, garage, home office, and also from appellant's clothing. Hall detected gasoline on each carpet sample and on appellant's clothing. Hall testified the amount of gasoline detected on appellant's clothing was ten times greater than that from the office sample and six times greater than that from the utility room sample. Hall further testified that because water was sprayed throughout the house, there was a possibility that gasoline spread into other areas away from where it was originally deposited.
        Zephaniah Elgin testified on appellant's behalf. Elgin testified appellant and his girlfriend came to her Forth Worth home at about 8:00 p.m. on June 19, 2004. According to Elgin, she, her boyfriend, appellant, and appellant's girlfriend drank and visited in her home until 1:00 a.m. The next day, appellant called Elgin from jail and said the police “had him on some bogus charges.” Elgin testified she distinctly remembered that appellant was at her home the evening before he was arrested.
        Appellant also testified in his defense. He denied he burglarized Henry's house or set it on fire. Appellant testified he was placed on probation on June 18, 2004. On June 19, 2004, he and D'Andre Johnson were walking to a park to play basketball when they saw some boxes sitting on the front porch of a house. Johnson crossed the street to investigate. Appellant claimed he stayed across the street from the house and never went near it. Appellant watched Johnson ring the doorbell, then walk around to the back of the house. Five minutes later, the police arrived. Appellant walked on to the park and did not see Johnson again until the next day. Appellant testified he remembered seeing Olinger, but never ran into her face-to-face because he was standing across the street from the house. Later that day, appellant claimed he and his girlfriend went to Elgin's house and stayed until about 1:00 a.m. or 2:00 a.m.
        Appellant next claimed that on June 20, 2004, he went to visit Johnson, who lived within walking distance of Henry's house. While they talked in the parking lot, appellant saw a black Land Rover and asked Johnson if he could drive it to the store. Johnson gave appellant the keys. Appellant testified he assumed the vehicle belonged to someone in Johnson's family. Appellant smelled gasoline when he got into the vehicle, found a silver coin in the driver's seat and put it in his pocket, and assumed the television in the back seat belonged to Johnson's girlfriend, who was moving at that time. According to appellant, when the police pulled him over, he gave them an Arizona driver's license in his name, never said the vehicle belonged to his aunt, and gave them the registration he got from the glove compartment. Appellant said he fled from police because the officers said he was going to jail. Appellant admitted he never mentioned his girlfriend or going to Elgin's house when he talked with a police detective.
        After appellant's testimony, the State recalled Detective Boy in rebuttal. Boy testified that during appellant's interview, appellant said he got the vehicle from Johnson. Appellant never mentioned Elgin, her boyfriend, going to their house the night before, going to play basketball at a park, or seeing Johnson go to Henry's house. Appellant completely denied being at or near Henry's house. Boy interviewed Johnson the same night he interviewed appellant, and he did not charge Johnson with the offense because no witnesses placed Johnson at Henry's house and nothing linked Johnson to the offense. Johnson did not smell of gasoline when Boy interviewed him.
Discussion
 
        In his first issue, appellant argues the evidence is factually insufficient to support his convictions for burglary of a habitation and arson because there was no eyewitness who placed him in Henry's house. Appellant asserts the evidence shows another person burglarized and burned Henry's house, there were no fingerprints or other physical evidence linking appellant to the burglary or arson, and appellant offered an explanation for his possession of Henry's stolen vehicle and collector's coin.
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 2006 WL 2956272, at *8. The fact finder is the exclusive judge of the witnesses'credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        To obtain a conviction for arson, the State was required to prove beyond a reasonable doubt that appellant started a fire or caused an explosion with intent to destroy a habitation and knowing it was within the limits of an incorporated city or town. See Tex. Pen. Code Ann. § 28.02(a)(2)(A) (Vernon Supp. 2006). To obtain a conviction for burglary of a habitation, the State was required to prove beyond a reasonable doubt that appellant, without the effective consent of the owner, entered a habitation with intent to commit theft. Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). Proof of entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976).
        The unexplained personal possession of recently stolen property may constitute sufficient evidence to support a conviction for burglary. See Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). If the defendant offers an explanation of his possession of the stolen property, the record must demonstrate the account is false or unreasonable. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). 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 fact finder. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.-Texarkana 2001, no pet.).
        In these cases, several witnesses placed appellant at Henry's house near the time of the offenses. Olinger, her daughter Audry, and Frazee saw appellant near Henry's house the afternoon before the house was burglarized and set on fire. In addition, appellant's clothing had more than six times the level of gasoline as the level taken from carpet samples where the fires were set. Appellant possessed Henry's stolen vehicle and other property when he was arrested.
        For his part, appellant claimed Johnson was the person who committed the offenses. Appellant offered an explanation for why he possessed Henry's property, stating he got Henry's vehicle from Johnson, he found the silver collector's coin in the driver's seat, and he assumed the television and other property inside the vehicle belonged to Johnson's girlfriend who was moving at the time.
        The jury's determination that appellant's explanation was false or unreasonable is not contradicted by the evidence. See Adams, 552 S.W.2d at 815. And it was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We conclude the evidence is factually sufficient to support appellant's burglary of a habitation and arson convictions. We resolve appellant's first issue against him.
        In his second issue, appellant argues the trial court abused its discretion in revoking his community supervision in the two previous burglary cases because the State failed to prove by a preponderance of the evidence that appellant committed a new burglary offense. We have already concluded the evidence was factually sufficient to sustain the conviction for the new burglary offense. We likewise conclude that a preponderance of the evidence shows appellant violated his community supervision by committing a new burglary of a habitation offense. See Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). Thus, the trial court did not abuse its discretion in revoking appellant's community supervision in each case. We resolve appellant's second issue against him.
        In a cross-point, the State asks us to modify the trial court's judgments in cause numbers 05- 06-00188-CR and 05-06-00189-CR to show appellant received sentences of twenty years for burglary of a habitation and thirty years for arson. The trial judge orally pronounced the sentences at twenty years for burglary and thirty years for arson, but the trial court's written judgments incorrectly state the sentences at thirty years for burglary and twenty years for arson. When a conflict exists between oral pronouncements of sentences and the sentences in written judgments, the oral pronouncements control. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). We sustain the State's cross-point. We modify the trial court's judgments to show appellant received sentences of twenty years for burglary and thirty years for arson. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        In cause numbers 05-06-00186-CR and 05-06-00187-CR, we affirm the trial court's judgments. In cause number 05-06-00188-CR, we modify the trial court's judgment to show it assessed appellant's punishment at twenty years' imprisonment. As modified, we affirm the trial court's judgment. In cause number 05-06-00189-CR, we modify the trial court's judgment to show it assessed appellant's punishment at thirty years' imprisonment. As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060186F.U05
 
 

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