Jones, Phillip Bernard v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Memorandum Opinion filed November 23, 2005

Affirmed and Memorandum Opinion filed November 23, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00410-CR

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PHILLIP BERNARD JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 980,469

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

Appellant, Phillip Bernard Jones, appeals his conviction for burglary of a habitation with intent to commit theft. In two issues, he contends the evidence is legally and factually insufficient to support the conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

On March 28, 2002, Gilberto Martinez lived on the second floor of a duplex with five other family members. That morning, Martinez used his Black and Decker drill to help a neighbor with a carpentry project. Later in the morning, he put the drill in its box and placed the box on some clothes in a hallway as he rushed to go somewhere. He left the home unlocked, as the family typically did during the day, and was gone for about an hour.

In the mid to late morning of the same day, Luciano Sanchez was performing carpentry work on the porch of the duplex when he saw appellant exit Martinez=s home and walk away. Sanchez recognized appellant because he had seen him in the neighborhood. Appellant was carrying a jacket that appeared to be wrapped around an object. When Martinez returned, Sanchez told him what he had seen and described appellant. Martinez recognized the man as appellant because he had also seen him in the neighborhood. Martinez then discovered that his drill was missing.[1]

The next morning, Houston Police Officer Joseph Romportl came to the home and interviewed Martinez and Sanchez, who both identified appellant. Subsequently, James Robinson, an officer in the burglary and theft division, conducted an investigation. He showed Sanchez an array of photographs, and Sanchez identified appellant. A jury found appellant guilty of burglary of a habitation with intent to commit theft. The trial court found an enhancement paragraph to be true and sentenced appellant to thirty years= confinement.

II. Standard of Review

Appellant contends the evidence is legally and factually insufficient to support the jury=s verdict. In reviewing the legal sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we consider all of the evidence in a neutral light and will set aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).

III. Discussion

A person commits the offense of burglary if, without the effective consent of the owner, the person enters a habitation with intent to commit a theft. See Tex. Pen. Code Ann. ' 30.02(a)(1) (Vernon 2003). Appellant contends the evidence is legally and factually insufficient to support the jury=s findings that he entered the habitation without consent of the owner and with intent to commit a theft.

A. Entry of the Habitation Without Consent of the Owner

In his first issue, appellant challenges the sufficiency of the evidence to support the finding that he entered the habitation without consent of the owner. AOwner@ means Aa person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.@ See Tex. Pen. Code Ann. ' 1.07(a)(35)(A) (Vernon Supp. 2005).

Here, Martinez testified that appellant did not have his consent to enter the home. Nonetheless, appellant contends the other relatives who lived in the home all had a greater right of possession than appellant, but the State failed to prove that appellant lacked their consent to enter. However, the State is not required to prove that a defendant lacked consent of every person with a superior right of possession. See Davis v. State, 782 S.W.2d 211, 220B21 (Tex. Crim. App. 1989); Mixon v. State, 365 S.W.2d 364, 365B66 (Tex. Crim. App. 1963). Instead, the State need only prove the defendant lacked consent of the owner as alleged in the indictment. See Davis, 782 S.W.2d at 220B21; Mixon, 365 S.W.2d at 365B66. Here, the State alleged in the indictment that Martinez was the owner. Therefore, the evidence is legally and factually sufficient to support the jury=s finding that appellant entered the home without consent of the owner. See Davis, 782 S.W.2d at 220B21 (finding sufficient evidence to prove burglary although State did not prove defendant lacked consent of all occupants because owner as alleged in indictment did not give defendant consent to enter home). We overrule appellant=s first issue.

B. Entry of the Habitation with Intent to Commit a Theft

In his second issue, appellant challenges the sufficiency of the evidence to support the finding that he entered the habitation with intent to commit a theft. A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. See Tex. Pen. Code Ann. ' 31.03(a) (Vernon Supp. 2005). AAppropriate@ means Ato acquire or otherwise exercise control over property other than real property.@ See Tex. Pen. Code Ann. ' 31.01(4)(B) (Vernon Supp. 2005).

Here, the State presented evidence that appellant appropriated the drill. In particular, Martinez placed the drill on some clothes in the hallway, left for about an hour, and when he returned, the drill was missing. His mother was the only other person in the home at the time, but she had been sleeping and did not hear anything. Martinez=s other family members did not know what happened to the drill. In the meantime, Sanchez saw a man leave the home carrying a jacket which appeared to be wrapped around an object. Sanchez=s description of the size of the object matched the size of the drill box.[2] Later, Sanchez viewed photographs of six men with similar characteristics and identified appellant as the man he saw leaving the home. Sanchez also identified appellant at trial.

Appellant concedes there is sufficient evidence that he entered the home, but he urges several reasons there is insufficient evidence he took the drill. For instance, appellant asserts that Martinez gave conflicting testimony on whether a jacket was also missing. However, any conflict over whether a jacket was missing does not negate Martinez=s testimony that the drill was missing. Further, whose jacket appellant was carrying when he left Martinez=s home is irrelevant to whether he took the drill.

Appellant further argues that Sanchez gave conflicting testimony on whether an object was wrapped in the jacket when appellant left Martinez=s home. However, viewing Sanchez=s testimony as a whole, it is not conflicting. Rather, it is clear Sanchez did not want to affirmatively state an object was wrapped in the jacket when he never saw the object, but he believed appellant was carrying an object. Nonetheless, the jury was entitled to resolve any conflicts and inconsistencies in Sanchez=s testimony and believe that an object was wrapped in the jacket. See Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

In addition, appellant notes the police did not search Martinez=s home or appellant=s home. However, as trier of fact, the jury was free to believe Martinez=s testimony that the drill was missing despite the fact that the officers did not search his home. The jury could also have inferred that the officers= failure to search appellant=s home was immaterial because the drill would not necessarily have been there. Appellant also notes that Officer Robinson did not find the drill at any of the pawn shops he contacted. However, Officer Robinson testified he did not search all the pawn shops in Houston. Further, he testified that stolen items are frequently sold on the street instead of pawned. Therefore, the fact that the drill was not found at a pawn shop does not negate the evidence that appellant took the drill.

Finally, appellant contends that because Martinez=s home was left unlocked, anyone could have entered and taken the drill. However, there is no evidence that anyone other than appellant entered the home while Martinez was gone. Instead, Officer Robinson explained that the case was Aclear cut@ and there were no other suspects. Moreover, there is no explanation why appellant, who was not a family member or friend, was in the home if he did not take the drill.

Consequently, the jury could have found beyond a reasonable doubt that appellant entered the habitation with the intent to commit theft. Further, the evidence supporting the jury=s finding, taken alone, is not too weak to sustain the finding beyond a reasonable doubt, and the contrary evidence is not so strong that the State could not have met its burden of proof beyond a reasonable doubt. Accordingly, the evidence is legally and factually sufficient to support the verdict. We overrule appellant=s second issue.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 23, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

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

[1] Martinez testified he discovered the drill was missing after he spoke with Sanchez; however, Sanchez testified he told Martinez what he had seen after Martinez mentioned that an item was missing. In any event, Martinez discovered the drill was missing and spoke with Sanchez around the same time.

[2] At trial, Martinez described the drill box as eighteen inches wide, twenty-four inches high, and six to eight inches thick. At trial, Sanchez=s description of the object appellant appeared to be carrying was not as detailed, but he stated the object was eighteen inches wide. Moreover, Martinez testified that on the day of the burglary, Sanchez described the size of the object appellant was carrying, and the description matched the size of the drill box.