John David Domkoski v. The State of Texas--Appeal from 264th District Court of Bell County

domkoski IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-040-CR
JOHN DAVID DOMKOSKI,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 39,516, HONORABLE STANTON PEMBERTON, JUDGE

PER CURIAM

A jury found appellant guilty of the offense of burglary of a habitation. Tex. Pen. Code Ann. 30.02(a)(3) (1989). Appellant pleaded true to the enhancement allegations of prior felony convictions, and the court sentenced him to twenty-five years imprisonment. In two points of error, he contends that the evidence was insufficient to establish two necessary elements of the offense: intent to deprive the owner of property and unlawful appropriation of property. We will affirm the judgment of conviction.

Officer Becky Brown of the Harker Heights Police Department testified that she investigated the burglary of a mobile home reported by Helga Domkoski, appellant's mother, who said that a back window had been pried open and a television set and three rings taken. Officer Brown verified the forced entry to the window by observing pry marks. She said Mrs. Domkoski stated that her son broke into the mobile home and took the television set and the rings during a time when she and her husband had informed appellant that they were leaving for Oklahoma and that he was to stay away from their home. On their return from Oklahoma, they discovered that a television set from their daughter's bedroom was missing. Mrs. Domkoski later made several changes in her account about whether appellant took the rings or they had been misplaced, and whether it had been all right for appellant to take the television and pawn it as he had done on several previous occasions.

 
THE OFFENSE

In the offense of burglary of a habitation, a person intentionally or knowingly enters a habitation without the effective consent of the owner, and commits or attempts to commit theft. Tex. Pen. Code Ann. 30.02(a)(3) (1989). Theft consists of a person unlawfully appropriating property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. 31.03(a) (1989). To deprive the owner of property means: (1) to withhold property from the owner permanently or for so extended a period of time that the major portion of the value or enjoyment of the property is lost to the owner; (2) to restore the property only upon payment of reward or other compensation; or, (3) to dispose of property in a manner that makes recovery of the property by the owner unlikely. Tex. Pen. Code Ann. 31.01(3) (1989).

The penal code does not require an actual deprivation of property, only the intent to deprive. That intent may be shown by a temporary deprivation. Draper v. State, 539 S.W.2d 61, 68 (Tex. Cr. App. 1976). The eventual return of the property does not negate that intent. Id. at 69.

 
INTENT TO DEPRIVE

Appellant contends that the evidence is insufficient to show his intent to deprive the owners of property because the evidence gives rise to another reasonable hypothesis: that appellant had permission to take and return the property because of his past dealings with the owners, his mother and sister.

When reviewing a challenge to the sufficiency of the evidence to support a conviction, we determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Cr. App. 1989). The Court of Criminal Appeals has said that if circumstantial evidence supports a reasonable hypothesis other than guilt, a finding beyond a reasonable doubt is not rational. Carlsen v. State, 654 S.W.2d 444, 448 (Tex.Cr.App. 1983) (opinion on reh'g). However, when testing the sufficiency of the evidence relied on to prove intent, if the evidence adequately supports an inference that the accused possessed the requisite intent, it is sufficient to sustain a guilty verdict regardless whether it might also support another inference. Moone v. State, 802 S.W.2d 101, 103-04 (Tex. App. 1990, pet. ref'd).

The jury could conclude that appellant took both the television and the rings from appellant's testimony that he had pawned the television set and returned the rings. The fact that the items were later recovered would not refute the inferences that the jury could draw regarding his intent at the time he took them. His mother and sister gave several conflicting statements to the police and at trial. The jury could have concluded that their first statements were the credible ones and rationally found that appellant intended to deprive them of property. We overrule point one.

 
UNLAWFUL APPROPRIATION

In point two, appellant contends that the evidence is insufficient to show that appellant committed or attempted to commit theft because it fails to show that appellant unlawfully appropriated property. Appropriation of property is unlawful if it is without the owner's consent. Tex. Pen. Code Ann. 31.03(b)(1) (1989). There is evidence to show that appellant did not have permission to enter the residence or take property from it. In fact, he had been specifically warned to stay away. That he mistakenly believed that past conduct authorized him to take the property on this occasion is not a defense. We overrule point two.

 

We affirm the judgment of conviction.

 

[Before Chief Justice Carroll, Justices Jones and Smith]

Affirmed

Filed: May 15, 1991

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