AMADO BALADES REYNA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 13, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01558-CR
............................
AMADO BALADES REYNA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-34960-YW
.............................................................
OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        Amado Balades Reyna waived a jury and pleaded not guilty to theft of property valued at $1500 or more, but less than $20,000. After finding appellant guilty, the trial judge assessed punishment at confinement in a state jail facility for 180 days, probated for two years. In three points of error, appellant contends the evidence is legally and factually insufficient to support the conviction and the trial court lacked jurisdiction to hear the case and render judgment. We affirm.
Background
 
        It is undisputed that on August 29, 2005, appellant and his sixteen-year-old girlfriend, Sylvia Gutierrez, broke into Sylvia's parents' home and stole several electronic items, including a laptop computer, and groceries. Appellant sold most of the items to various pawn shops that same day, but he gave the computer to a relative. A Grand Prairie police detective located two of the stolen items at one of the pawn shops. The detective also retrieved the shop's surveillance videotape that showed appellant and Sylvia entering the shop with the items.
        Gloria Gutierrez, Sylvia's mother, testified Sylvia had run away from home shortly before the theft. Mrs. Gutierrez had warned Sylvia that if she ran away, “nothing in the house would belong to her.” When Sylvia did run away, she went to live with appellant. Mrs. Gutierrez testified she and her husband purchased all of the items that were stolen, which included two television sets, two stereos, a Play-Station console, an MP3 player, and a laptop computer. One of the stereos and the MP3 player were recovered from a pawn shop. None of the other items were found. Mrs. Gutierrez testified it would cost $400 to repair a double-pane window broken during to offense to gain entry into the house.
        Jose Gutierrez, Sylvia's father, testified he viewed the pawn shop surveillance videotape that showed appellant and Sylvia pawning some of the items stolen from his home. Mr. Gutierrez testified all of the property taken from his home belonged to him, and the unrecovered property is worth $2100.
        Sylvia Gutierrez testified the burglary of her parents' home occurred a few weeks after she left home and moved in with appellant. Appellant suggested they get Sylvia's “belongings” from her parents' house because he knew she was unhappy about leaving them behind. Because Sylvia did not have a key to the house, appellant broke out a window in Sylvia's old bedroom so they could enter the house while no one else was there. She and appellant got trash bags from inside the house and put items from her bedroom and the living room into the bags. Sylvia testified the laptop computer belonged to her father, but all of the other items taken belonged to her. Sylvia gave appellant permission to pawn the MP3 player and stereo. Appellant gave the computer to one of his relatives. Sylvia did not know what happened to the other property.
        On cross-examination, Sylvia admitted she did not have her parents' permission to be in the house. She also admitted her father had purchased all of the property and the property belonged to him.
Standard of Review
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). 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.).
        In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        The State was required to prove beyond a reasonable doubt that appellant unlawfully appropriated property valued at $1500 or more, but less than $20,000, without the effective consent of Jose Gutierrez, the owner. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(A) (Vernon Supp. 2008).
Discussion
 
        In his first and second points of error, appellant argues the evidence is legally and factually insufficient to show he took the property without the owner's consent. Appellant asserts the property belonged to Sylvia, and she gave appellant consent to take the property. The State responds the evidence is legally and factually sufficient to support appellant's conviction.
        Mr. and Mrs. Gutierrez testified they were the owners of the property, they had purchased all of the property before it was taken by appellant and Sylvia, and Sylvia had no rights to any of the property after she ran away from home. Sylvia initially testified the property belonged to her and she gave appellant permission to take it. She later admitted she did not have permission to be inside her parents' house or to take anything from the house, and that her parents had purchased all of the property that she and appellant took from the house.
        It was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.).
        Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Swearingen, 101 S.W.3d at 97. We overrule appellant's first two points of error.
Trial Court Jurisdiction
 
        In his third point of error, appellant argues the trial court lacked jurisdiction because this case was not properly transferred to its docket. Appellant contends the indictment was returned in the Criminal District Court No. 7, but there is no order transferring the case to the 363rd Judicial District Court. The State responds that appellant has failed to preserve his complaint. We agree with the State.
        Appellant did not raise the issue of the absent transfer order in the trial court. Consequently, appellant's complaint, raised for the first time on appeal, is untimely. See Sharkey v. State, 994 S.W.2d 417, 419 (Tex. App.-Texarkana 1999, no pet.). We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071558F.U05