In the Matter of M.G.G.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00740-CV
IN THE MATTER OF M.G.G.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-JUV-02377-B
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: July 18, 2007

 

AFFIRMED

M.G.G., a juvenile, appeals the trial court's judgment finding he engaged in delinquent conduct by committing the offense of burglary of a habitation, and committing him to the Texas Youth Commission (TYC). We affirm the trial court's judgment.

1. In his first and second issues, M.G.G. argues no reasonable fact finder could have found beyond a reasonable doubt that he entered the victim's home, or, alternatively, the evidence was factually insufficient to support the adjudication. The record shows that during the adjudication phase the State relied on both circumstantial evidence and statements made by M.G.G. to three neighbors of the victim - Ishmal Beard, Elsa Morales, and Lula McCarter. The evidence established that the victim lived at her home at 2123 E. Crockett until her death on May 30, 2005, and M.G.G. and his family lived nearby at 2111 E. Crockett. The burglary occurred on July 5, 2005 while the home was unoccupied. The property identified as stolen in the burglary included: a large brass and glass coffee table with matching end tables; 50 pieces of jewelry, including a solitaire diamond ring, gold chains, large gold rings, several pendants of butterflies, fish and flowers; two handguns, including a derringer; and miscellaneous other items and electronic equipment. Prints obtained from the home did not match M.G.G., and no one saw M.G.G. or anyone associated with him enter or leave the home. However, on the day the burglary was discovered, witnesses observed drag marks on the sidewalk that led from the front steps of the victim's home to the front of M.G.G.'s family home. In addition, Beard testified M.G.G. approached him soon after the burglary and asked him if he wanted to buy some glass tables. Beard saw three glass tables, two small and one large, in M.G.G.'s bedroom. When asked how he had acquired the furniture, M.G.G. told Beard that he, his brother and another person broke into the dead lady's house and stole all her stuff. M.G.G. told Beard that they wore gloves for the burglary and had taken, among other things, a derringer handgun and a .45 caliber handgun. A second neighbor, Morales, testified M.G.G. and his brother tried to sell her a bracelet, a ring, and a necklace with a butterfly design, and had furniture and electronic equipment for sale. A third neighbor, McCarter, testified M.G.G. tried to sell her a gold chain about four or five days after the burglary. Other evidence admitted at trial showed that after the burglary, M.G.G.'s mother pawned 29 items, including a number of jewelry items, some of which were similar to those listed as stolen in the burglary. (1) These pawned items were never redeemed. None of the property stolen in the burglary was ever recovered.

In support of his position, M.G.G. relies upon McBride v. State, 803 S.W.2d 741 (Tex. App.--Dallas 1990), pet. dism'd, 819 S.W.2d 552 (Tex. Crim. App. 1991), for the proposition that a vague confession to a burglary is legally insufficient to sustain a conviction where no property taken in the burglary is found on the defendant or anyone associated with him. In McBride, the defendant confessed to committing several burglaries. The court of appeals found that, despite the confession, the evidence was insufficient to show the defendant had committed the charged burglary, reasoning that the "confession's description of the location of the burglary was vague and imprecise;" "no property taken in the . . . burglary was found in [the defendant's] possession;" and "the State offered no proof that the items described in [the defendant's] confession were the same or even similar to the items taken" from the charged burglary. Id. at 743-44.

We conclude the evidence in the instant case is clearly distinguishable from McBride. Here, as contrasted with the confession and evidence presented in McBride, M.G.G.'s admission to a neighbor that he broke into the house of "the lady that died down the street" is not vague or imprecise. Instead, the statement identifies with reasonable particularity the owner of the house and the neighborhood location of the house burglarized. In addition, there is evidence in this record, other than the confession, linking M.G.G. to the charged burglary. Several witnesses testified they saw items similar to those stolen in M.G.G.'s possession, including a large glass and brass coffee and end table set. Furthermore, several witnesses testified there were scrape marks in the sidewalk, apparently made by something large and heavy being dragged over it, beginning at the bottom of the front steps of the victim's home and ending at M.G.G.'s home. Evidence was presented that M.G.G.'s mother pawned jewelry which was similar to that stolen. When M.G.G.'s confession to Beard is combined with the cumulative force of all the circumstantial and corroborative evidence, it is both legally and factually sufficient to support M.G.G.'s adjudication for burglary. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). M.G.G.'s first and second issues are overruled.

2. M.G.G. next argues the trial court erred in committing him to TYC because probation would have been a more appropriate disposition. M.G.G. contends the trial court abused its discretion when it did not follow the recommendation for probation by Everett Henderson, the juvenile probation officer who testified at the disposition hearing. Based on the record before us, we respectfully disagree. Juvenile judges have broad discretion to determine a suitable disposition for a child who has been adjudicated as having engaged in delinquent conduct. Matter of T.A.F., 977 S.W.2d 386, 387-88 (Tex. App.--San Antonio 1998, no pet.).

As summarized in Henderson's pre-disposition report, M.G.G. was 16 years old at the time of the disposition hearing, had juvenile referrals dating back two years, and had previously received probation in July 2005 - the same month as the charged burglary. At the time of M.G.G.'s disposition hearing, allegations of an assault on his brother in August 2005 and violation of his probation conditions in March 2006 were pending. In addition, M.G.G. admitted to having a severe alcohol abuse problem and had started substance abuse classes on one occasion, but failed to complete the program. M.G.G. also had a long history of gang involvement, and a history of arguments with his siblings and mother and leaving the home without permission. Henderson agreed that M.G.G.'s home life had been unstable. The family had moved several times, having been evicted from different residences, and had stayed with family members. Further, M.G.G.'s younger sister was currently on probation, but was "A.W.O.L.," having left home without permission. While on probation she was supposed to be in the care, custody and control of M.G.G.'s mother, the same parent and the same household that Henderson was recommending for M.G.G.'s probation. The record also established that M.G.G. had failed to appear for court on October 2005 and a warrant was issued in November 2005. After M.G.G. again failed to appear for a court setting in February 2006, Henderson went to M.G.G.'s home; no one could tell him M.G.G.'s location. A warrant was issued in March 2006, resulting in M.G.G. turning himself in to authorities and being held in detention until the July 2006 trial. Henderson conceded that part of M.G.G.'s recent improvement was due to the fact that he had been confined in a secure, lock-down facility, rather than "roaming around on the street" or being at home. After reviewing the evidence, we cannot say the trial court abused its discretion in committing M.G.G. to TYC. M.G.G.'s third issue is overruled.

Based on the foregoing reasons, the trial court's judgment is affirmed.

Phylis J. Speedlin, Justice

 

1. The evidence further showed that for the entire year of 2004, M.G.G.'s mother pawned only four items.