Brook Daniel McKenzie v. The State of Texas--Appeal from 18th District Court of Johnson County

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IN THE

TENTH COURT OF APPEALS

 

No. 10-93-165-CR

 

BROOK DANIEL McKENZIE,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 18th District Court

Johnson County, Texas

Trial Court # 29208

 

O P I N I O N

 

Brook Daniel McKenzie appeals his conviction for burglary of a habitation. // A jury found McKenzie guilty and assessed punishment, enhanced by one prior felony conviction, at seventy-five years in prison. We affirm.

In point one McKenzie contends that the trial court erred in admitting into evidence an oral statement made by McKenzie after his arrest. On September 26, 1992, McKenzie was arrested for burglary of a habitation. Jerry W. Scarbrough, a Sheriff's deputy for Johnson County, testified at trial that after the arrest he informed McKenzie of his rights and transported him to the Johnson County Law Enforcement Center. According to Deputy Scarbrough, McKenzie rode in the front passenger seat, and Deputy Hoskins rode in the back seat. When asked if McKenzie made any statements, Scarbrough replied, "Yes, ma'am." The prosecutor then asked, "What did he say?" Defense counsel objected and filed a "Motion to Surpress" [sic] any alleged statements of the defendant because the State had not complied with article 38.22 of the Texas Code of Criminal Procedure. The trial court overruled McKenzie's objection and issued the following findings of fact and conclusions of law:

(1) The defendant, Brook Daniel McKenzie, was advised of his constitutional and statutory rights prior to the oral statement being made;

(2) The oral statement made by the defendant, Brook Daniel McKenzie, was a voluntary statement, made while in custody, but not in response to interrogation;

(3) The oral statement made by the defendant, Brook Daniel McKenzie, falls within the exception of Article 38.22, Sec. 5, V.A.C.C.P., allowing admission of both res gestae statements, as well as statements which do not stem from custodial interrogation.

 

An oral admission made while in custody is generally inadmissible under section 3 of article 38.22. // According to section 5 of article 38.22, however, "Nothing in this article precludes the admission . . . of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation . . . ." // The State does not dispute the fact that McKenzie was in custody at the time he made the statements. It argues however, that the statement was admissible because it was not made in response to custodial interrogation. We agree.

Scarbrough testified outside the presence of the jury that he read the Miranda // rights to McKenzie after they put him in the patrol car and that, when he asked McKenzie whether he understood each of those rights, McKenzie responded affirmatively. According to Scarbrough, neither he nor Hoskins questioned McKenzie in any way while transporting him to the county jail. Scarbrough also testified that McKenzie's statement was not made as a result of any question, comment, request, or statement made by either officer. Scarbrough testified that after they had been in the car about five minutes McKenzie "made the statement that he had better tools at home than what he took from that man." The defense attorney's cross-examination of Scarbrough at the motion to suppress focused entirely on the uncontested issue of custody and whether the statement was recorded in compliance with the provisions of section 3 of article 38.22. At the motion to suppress, McKenzie denied making any statement to the officers, but he also testified that they did not interrogate him or ask him any questions on the way to the jail. Finally, Hoskins testified that after Scarbrough read McKenzie his rights, neither she nor Scarbrough interrogated McKenzie. According to Hoskins, McKenzie "stated that, why would he want those tools because he had better ones at home than the ones he took from that man?" The oral statements made after his surrender were made after the Miranda warnings were given to McKenzie and not in response to questioning. // Because the statement was not made as the result of custodial interrogation, we overrule point of error one.

In point two McKenzie contends that the evidence is insufficient to support his conviction for burglary of a habitation. 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. // McKenzie testified that he went into the garage to retrieve his cat, which had run under a partially opened garage door. As a result, McKenzie argues on appeal that the evidence does not exclude every reasonable hypothesis other than his guilty intent. Because direct and circumstantial evidence are subject to the same standard of review, however, the evidence need not exclude every other reasonable hypothesis. //

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. // Sam Bigler, the homeowner whose garage was burglarized, testified that, when he and his wife arrived home late in the evening, he saw a car backed into their driveway. According to Bigler, his weed eater and chain saw, which were normally kept in the garage, were on the ground beside the car. When he noticed a light flashing around inside the garage he "hollered for whoever was in [his] garage to come out." After Bigler fired two shots in the air, McKenzie crawled out from under the partially opened garage door. Bigler confronted McKenzie in the driveway with a gun, but McKenzie eventually "broke" for his car and escaped down the driveway. A neighbor, alerted by Bigler's wife, pursued McKenzie in his truck until the police were able to arrest him. Jeff Moran, a Johnson County Sheriff's Department detective, testified that, during an inventory of McKenzie's car, he found a tool chest, assorted tools, an air compressor, a pair of tree pruners, and a sabre saw, identified by Bigler as tools missing from his garage after the burglary. Finally, we note McKenzie's incriminating statement, made to the officers after his arrest while being transported to the county jail. 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 McKenzie intended to commit theft at the time he entered the garage. // Accordingly, we overrule point of error two.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

 

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 26, 1993

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