David Wayne Dunn v. The State of Texas--Appeal from 10th District Court of Galveston County

IN THE

TENTH COURT OF APPEALS

No. 10-92-173-CR

DAVID WAYNE DUNN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 10th District Court

Galveston County, Texas

Trial Court # 91CR1080

O P I N I O N

David Dunn appeals his conviction for burglary. // He was found guilty by a jury, and, as a result of two prior felony convictions that enhanced the range of punishment, the court assessed punishment at forty years in prison.

On Sunday afternoon, July 14, 1991, Officer Bret Luck of the Galveston Police Department received a burglary in progress call. After arriving at the residence and talking with the neighbor who reported the suspicious activity, Luck radioed for an additional officer. Luck then saw Dunn stand up from his previously concealed position on the porch of the house and exit the doorway. Dunn was not wearing a shirt and was holding a screwdriver in his hand. Officer Belarmino Sanchez, who arrived on the scene as a backup, searched Dunn and found a small ratchet driver, a piece of metal about five inches long, and a shirt in Dunn's pocket.

In point one Dunn contends that the evidence was insufficient to support his conviction for burglary because there was no evidence that he intended to commit theft at the time he entered the house. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. // Intent, as an essential element of the offense of burglary, may not be left simply to speculation and surmise. // However, the jury is exclusively empowered to determine the issue of intent, and the events of a burglary may imply the intent with which the burglar entered. //

Officer Luck testified that Dunn claimed to know the resident of the house and that he was looking for a knife which he had hidden on the porch after a fight during the previous night. Mike Price, another officer with the Galveston Police Department, was able to confirm that on the night before Dunn was arrested for burglary he had been in a fight and was taken to the hospital for treatment. However, the owner of the house testified that he did not know Dunn and that he had not given Dunn permission to enter his house. Furthermore, Luck and Sanchez were not able to find a knife on Dunn or on the porch. Although the jury could not properly find the requisite intent "purely on the basis of its disbelief of the accused's contrary assertions," there is sufficient other evidence from which the jury could properly infer Dunn's intent to commit theft. //

Officer Luck testified that it was not unusual to find a burglar with a shirt in his back pocket. According to Luck, a burglar would enter the house either shirtless or wearing a shirt of a different type and, upon leaving the house, would put the other shirt on so that he would not match the description provided by witnesses to the burglary. Furthermore, Dunn was hiding on the porch until it became apparent that Luck would wait for a backup before entering the house.

Officer Sanchez testified that he found pry marks on the door frame and the piece of plywood which was covering the doorway. Finally, Sanchez testified that at the threshold of the doorway he found a piece of gauze with a red substance he suspected was blood. According to Sanchez, Dunn had a laceration to the hand, which was bloody.

Direct and circumstantial evidence are subject to the same standard of review. // Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found, beyond a reasonable doubt, that Dunn intended to commit theft at the time he entered the house. // Accordingly, we overrule point of error one.

In point two Dunn contends that the court erred in overruling his objection to Officer Luck's testimony that burglars commonly carry the type of tools found on Dunn at the time of his arrest. No such testimony, however, can be found in the record. The parenthetical reference to the record directs us to Luck's testimony that it is not unusual to find a burglar with an article of clothing in his back pocket. Because Dunn's brief presents nothing for review under point of error two, it is overruled. //

In point three Dunn contends that the court erred in overruling his objection to Luck's testimony that Dunn behaved in a manner consistent with how burglars behave. Specifically, he complains of Luck's testimony that a burglar would enter the house either shirtless or wearing a shirt of a different type and, upon leaving the house, would put the other shirt on so that he would not match the description provided by witnesses to the burglary. According to Dunn's argument under point three, "the fact that the appellant was behaving similarly to other burglars was not very probative on the issue of his intent in this case, but was highly prejudicial, and should have been excluded." At trial, however, Dunn objected that Luck's testimony would be speculation. Because Dunn's complaint in point three does not conform to his objection at trial, nothing is preserved for review. // Accordingly, we overrule point of error three.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald, Retired

Affirmed

Opinion delivered and filed October 13, 1993

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