Johnson, Paul v. The State of Texas--Appeal from 263rd District Court of Harris County

Affirmed and Memorandum Opinion filed April 15, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00853-CR

____________

PAUL JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 930,226

M E M O R A N D U M O P I N I O N

Appellant Paul Johnson appeals from his felony conviction for burglary of a habitation with intent to commit theft. A jury found him guilty of that offense and, after finding both enhancement paragraphs of the indictment to be true, assessed punishment at fifty-five years= confinement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.

Appellant presents two issues for review. First, he argues that the evidence is legally and factually insufficient to support his conviction. Second, he argues that the trial court erred in allowing the complaining witness (Acomplainant@) to testify at the punishment phase after violating the court=s exclusion order. We address these issues below in that order.

In his first issue, appellant argues that the evidence is legally and factually insufficient to support his burglary conviction because the State presented no evidence that he entered the house with the intent to commit theft. He contends that the evidence established only that he was Aan ill, unhappy person who knew he could gain access to [complainant=s] house and did so.@ We apply the usual standards of review. See Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual sufficiency).

A person commits the offense of burglary of a habitation with intent to commit theft if: (1) without consent of the owner, he (2) enters (3) a habitation (4) not then open to the public (5) with intent to commit theft. Tex. Pen. Code Ann. ' 30.02(a)(1) (Vernon Supp. 2003). Appellant=s sufficiency challenge is limited to the evidence establishing the fifth element. Intent to commit theft may be inferred from circumstantial evidence. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986).

In this case, complainant returned home with his son at around 6:00 p.m. on November 12, 2002. After entering through the back door, he walked to the back porch area and noticed that dog food was scattered all over the floor. Complainant testified that his son informed him that their VCR and Nintendo game system were missing from the porch area. After walking up toward the laundry room and the adjacent apartment belonging to his daughter, complainant noticed that his daughter=s cabinet, where she stored her dolls, was open. Complainant entered the apartment and noticed that the VCR, the Nintendo, and a dog food bag containing the Nintendo game cartridges and the VCR tapes were stacked on the bed in a laundry basket. He noticed that his daughter=s dolls were stacked into a foot locker next to the bed. The regular contents of the foot locker, including his daughter=s papers and other items, were found scattered on the floor.

Complainant then walked into the kitchen and heard a noise coming from the back hallway. He went to his bedroom to retrieve his pistol, during the course of which he saw appellant standing with his back to complainant in front of a hallway closet. With pistol in hand, complainant confronted appellant and held him at gunpoint. At appellant=s feet were, among other things, a jar of money, an air gun, and a tool box, all of which belonged to complainant. These items had been removed from the closet and complainant=s bedroom.

Similar evidence of intent to commit theft has been found sufficient in other cases. See, e.g., Stearn v. State, 571 S.W.2d 177 (Tex. Crim. App. 1978) (defendant was discovered in kitchen, nothing had been disturbed, and defendant immediately fled); McGee v. State, 923 S.W.2d 605, 608 (Tex. App.CHouston [1st Dist.]1995, no pet.) (defendant entered house, fled both the scene and pursuing officers, and was apprehended with stolen air conditioning units lying nearby on floor); Armstrong v. State, 781 S.W.2d 937, 939 (Tex. App.CDallas 1989), aff=d, 805 S.W.2d 791 (Tex. Crim. App. 1991) (defendant was seen breaking into building, items on a desk had been moved, and papers had been shuffled); White v. State, 630 S.W.2d 340, 342 (Tex. App.CHouston [1st Dist.]1982, no pet.) (defendant moved welding equipment from back of garage to the front). We therefore hold that the evidence presented is legally sufficient to support a finding that appellant had the requisite intent to commit theft.

Against this evidence, appellant points to testimony that complainant was in the process of moving from his house, and he argues that this explains the disarray found inside. Appellant also emphasizes his statements made to complainant while held at gunpoint that he was sick and dying of AIDS, and that he had broken into complainant=s home once before and did so again because it was easy. Because this evidence does not greatly outweigh the proof of appellant=s guilt and the proof of guilt is not so obviously weak as to undermine confidence in the jury verdict, we hold that the evidence is factually sufficient to support the finding that appellant intended to commit theft upon entering complainant=s house. Accordingly, we overrule appellant=s first issue.

In his second issue, appellant argues that the trial court erred in allowing complainant to testify at the punishment phase after violating the court=s exclusion order because complainant=s testimony was influenced by that of the prior two witnesses. At the request of either party, the court shall order witnesses removed from the courtroom so they cannot hear the testimony of other witnesses. Tex. R. Evid. 614 (Athe Rule@). Enforcement of the Rule lies within the sound discretion of the trial court, and its actions will be disturbed only upon a showing of abuse of discretion or injury to the defendant. Cooks v. State, 844 S.W.2d 697, 733 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 927 (1993). In reviewing the trial court=s admission of complainant=s testimony despite his violation of the Rule, we must consider two inquiries: (1) whether the witness actually heard the testimony or conferred with another witness without court permission; and (2) whether the witness= testimony contradicted the testimony of a witness he actually heard from the opposing side or corroborated the testimony of another witness he actually heard from the same side on an issue of fact. Id.

In the present case, we assume that, during the punishment phase, complainant actually heard the testimony of the two prior witnesses, Harold Williams and Linda Haley, both employed by the Harris County Sheriff=s Department. During the punishment phase, complainant testified to the following facts only: (1) he was the same witness who testified during the guilt phase of trial; (2) his house had been burglarized sometime in October (presumably in 2002); (3) his daughter had cash, a camera, and a German beer sign stolen during the October burglary; (4) no one, to his knowledge, had been arrested for the October burglary; (5) appellant told him during the November burglary that he had burglarized complainant=s house earlier; and (6) appellant told him during the November burglary that it was complainant=s fault because complainant had made it easy to do so. Williams and Haley did not testify regarding any of those facts. Because complainant=s testimony did not corroborate the testimony of either Williams or Haley, we cannot say that the trial court abused its discretion in admitting complainant=s testimony during the punishment phase or that appellant was harmed as a result of such admission. Accordingly, we overrule appellant=s second issue.

The judgment is affirmed.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed April 15, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).