LARRY SWEATT v. THE STATE OF TEXAS--Appeal from 28th District Court of Nueces County

 NUMBER 13-04-00336-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

LARRY SWEATT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 28th District Court of Nueces County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Larry Sweatt, guilty of the offense of burglary of a habitation with intent to commit theft[1] and assessed his punishment at seven years= imprisonment. The trial court has certified that this is not a plea-bargain case and appellant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). By a single point of error, appellant contends the evidence is legally insufficient to support his conviction. We affirm.

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

A. Standard of Review

When we conduct a legal sufficiency review, we must examine the evidence presented in the light most favorable to the verdict and determine whether 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 (1979);Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, we consider all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of the witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. The fact finder may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex. App.BBeaumont 1996, pet. ref'd).

We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Id.; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) ("We believe the 'law' as 'authorized by the indictment' must be the statutory elements of the offense . . . as modified by the charging instrument.").

B. Applicable Law

A person commits burglary if, without the effective consent of the owner, he enters a habitation not then open to the public, with intent to commit theft. See Tex. Pen. Code Ann. ' 30.02 (a)(3) (Vernon 2003). Guilt of the offense of burglary can be established circumstantially by the combined and cumulative force of all the incriminating circumstances. Medrano v. State, 658 S.W.2d 787, 790 (Tex. App.BHouston [1st Dist.] 1983, pet. ref'd) (citing Phipps v. State, 630 S.W.2d 942, 945 (Tex. Crim. App. 1982)). However, proof of guilt by accompanying circumstances is subject to the same rigorous standard of proof required of direct evidence, namely, proof beyond a reasonable doubt. See Medrano, 658 S.W.2d at 790 (citing Hankins v. State, 646 S.W.2d 191, 200 (Tex. Crim. App. 1983) (op. on reh=g)). In deciding whether the circumstantial evidence is sufficient to support a conviction, each case must necessarily be tested by its own facts. Id. (citing Robinson v. State, 570 S.W.2d 906, 910 (Tex. Crim. App. 1978) and Ysasaga v. State, 444 S.W.2d 305, 308 (Tex. Crim. App. 1969)). The State may prove the element of entry through circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978); Draper v. State, 681 S.W.2d 175, 177 (Tex. App.BHouston [14th Dist.] 1984, pet. ref'd).

When there is independent evidence of a burglary, the unexplained personal possession of recently stolen property will support an inference that the possessor is guilty of the offense in which the property was stolen. Harris v. State, 656 S.W.2d 481, 483 (Tex. Crim. App. 1983); Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983).

C. Analysis

Eli Daniels testified that on February 5, 2002, appellant asked him for a ride to 1517 Van Loan Street to pick up a television set for repair. Appellant knocked on the door and receiving no answer, went to the back of the house to see if anyone was home. Appellant came back five minutes later carrying a television set and loaded it in the bed of Daniels= truck. A lady then drove up and asked appellant to return her TV. He put the TV on her porch and left with Daniels. Appellant told Daniels that this lady was the one who asked him to repair the TV, and he wished she would make up her mind whether she wanted him to fix it.

Patricia Taylor, the owner of the house at 1517 Van Loan, testified that her daughter, Ferris Anderson, lived at the house. Taylor said that on February 5, 2002, she observed appellant in a small truck leaving the driveway of her house at 1517 Van Loan with her television set in the back of the truck. She told appellant that the television set belonged to her, and he picked it up, placed it on her front porch, and left. Taylor testified that she never gave appellant permission to enter her house, nor did she ever tell him to fix her television.

Taylor=s daughter, Ferris Anderson, testified that she did not know appellant. She testified that she did not ask him to fix the television, and she did not give him permission to enter the house.

Appellant testified that, while scanning for abandoned televisions in the neighborhood, he saw a television sitting toward the rear of the garage at an abandoned house next to 1517 Van Loan. He then asked Daniels to help him pick up the television. He admitted he was trespassing and admitted he was wrong in taking the television, but denied entering the house.

In the instant case, not only did appellant have possession of the stolen television set in Daniels= truck, but under the circumstances of the case we find his explanation to be unreasonable. By his own explanation, he admits that he stole the television, but says that he did not enter the house to retrieve it. Appellant claims that somebody else burglarized the house and left the television behind; he happened upon the television following the burglary. Furthermore, appellant damaged his own credibility by hiding the circumstances of the theft from Daniels and falsifying a story that the homeowner wanted her television repaired. Because the State may prove the element of entry through circumstantial evidence, appellant=s admission that he stole the television taken in the burglary in question gave rise to a reasonable inference that he was guilty of the underlying burglary. See Gilbertson, 563 S.W.2d at 608.

Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found the essential elements of the offense of burglary of a habitation with intent to commit theft beyond a reasonable doubt. Accordingly, we conclude the evidence is legally sufficient to support appellant's conviction. Appellant's sole point of error is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 22nd day of August, 2005.

[1] See Tex. Pen. Code Ann. ' 30.02 (a)(3) (Vernon 2003).