Dwain Joseph Bernard v. The State of Texas--Appeal from 252nd District Court of Jefferson County

OPINION

No. 04-03-00530-CR

Dwain Joseph BERNARD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 252th Judicial District Court, Jefferson County, Texas

Trial Court No. 88773

Honorable Layne Walker, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 2, 2004

AFFIRMED

A jury found defendant, Dwain Joseph Bernard, guilty of burglary of a habitation and assessed punishment at eighteen years' confinement. In two issues on appeal, defendant complains of the sufficiency of the evidence in support of the jury's verdict and that he was denied his right to cross-examine a State's witness. We affirm.

SUFFICIENCY OF THE EVIDENCE

In his first issue, defendant asserts the evidence is legally and factually insufficient to support a finding that he was criminally responsible for the offense of burglary of a habitation. Defendant argues he was not apprehended inside the residence, there is no physical evidence establishing his presence in the residence, and no evidence that anything was missing from the residence. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Zuniga v. State, No. 539-02, 2004 WL 840786, * 7 (Tex. Crim. App. Apr. 21, 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

A person commits the offense of burglary of a habitation with intent to commit theft if, without consent of the owner, he enters a habitation not then open to the public with intent to commit theft. Tex. Pen. Code Ann. 30.02(a)(1) (Vernon Supp. 2003). Intent to commit theft may be inferred from circumstantial evidence. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986).

Walter Walker, a maintenance worker for the City of Beaumont, was across the street from complainant's house when he noticed three males walking up and down the street. He identified one of the men as defendant. Walker said one of the other two men then stood on complainant's front porch while defendant and the other man walked around the back of the house. He then heard glass breaking on the right side of the house. Walker had already called the police when he thought the three men were "casing the house out," but when he heard the breaking glass, he and his co-worker drove their truck forward so that they were able to see the other two men "going up in the window of the home." Although Walker did not see defendant enter the house, he saw him exit the house through the window. Walker said that when the unmarked police car "pulled up in the driveway, that's when the gentlemen were bailing out of the window in the home, [defendant] and the tall gentleman bailing out the window." Walker and his co-worker again moved their truck forward because defendant and one of the other men were running away and he wanted to "keep an eye on them." Walker called police dispatch to report that defendant was standing on the porch of another house, where he ultimately was arrested. Walker said he has seen defendant in the neighborhood many times and was familiar with him. The complainant testified defendant did not have her permission to enter her home. We hold this evidence is sufficient to support the jury's verdict.

RIGHT OF CROSS-EXAMINATION

In his second issue, defendant asserts the trial court erred in denying him the right to cross-examine Walker regarding his physical and mental condition and how these conditions may have affected Walker's powers of observation. The State concedes the trial court erred, but argues defendant failed to preserve error because he did not make an offer of proof. We agree with the State.

To preserve a complaint that the trial court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); Haygood v. State, 127 S.W.3d 805, 812 (Tex. App.--San Antonio 2003, pet. filed). Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Guidry, 9 S.W.3d at 153; Haygood, 127 S.W.3d at 812. Defendant made no offer of proof regarding what Walker would have said about his physical or mental condition; therefore, he has failed to present anything for our review on appeal.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH