Robert Garcia Avila v. The State of Texas--Appeal from 363rd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Roberto Garcia Avila

Appellant

Vs. No. 11-01-00346-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted Roberto Garcia Avila of burglary of a building, and the trial court assessed his punishment at confinement in a state jail facility for 1 year and a $1,600 fine. We affirm.

Appellant presents two issues for appellate review. In these issues, he challenges the legal and factual sufficiency of the evidence and urges that the evidence is insufficient to show that he entered the building or removed any items from the building. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence in support of a vital fact is so weak as to be clearly wrong and manifestly unjust or whether the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981).

The record shows that Detective David Baker and Officer Michael Potter were working undercover patrolling an area where residential burglaries had become a problem. The officers testified that they became suspicious of a vehicle that was going from alley to alley and that they followed the vehicle. Appellant was the passenger in that vehicle. The officers noticed that the vehicle stopped in the alley at the location of the driveway to 3816 Waldorf Circle, a residence owned by Ralph Echols. Detective Baker and Officer Potter both testified that, when they saw the vehicle at that location, the driver remained seated in the car; the passenger door was open; and appellant was not in the car. The officers did not maintain a constant surveillance on the vehicle or appellant because they did not want the passengers in the vehicle to realize that they were being followed. Other undercover officers in the area helped with the surveillance. Detective Baker testified that the vehicle made several stops after it left Waldorf Circle. At the first stop, he saw appellant at the trunk of the car with a Afairly large@ object in his hand. The object was a Areddish orange color.@ After observing the vehicle cruise other alleys and make various stops, the officers called for a uniformed officer to stop the occupants of the vehicle when they saw appellant lift a reddish-orange chain saw from the trunk and show it to a man in a parking lot. When the uniformed officers arrived, appellant dropped the chain saw into the trunk and shut the trunk. The driver of the vehicle cooperated fully and opened the trunk, which contained a chain saw and a weed eater. The driver showed the officers where the items had come from B a storage shed at 3816 Waldorf Circle. Echols identified both the chain saw and weed eater as items that were stolen from his storage shed. Appellant testified in his own behalf. He denied any knowledge of the chain saw, the weed eater, or the residence at 3816 Waldorf Circle.

We hold that the evidence is both legally and factually sufficient to support appellant=s conviction. The evidence supports an inference that appellant entered the shed with the intent to commit theft and did, in fact, commit a theft. See Harris v. State, 656 S.W.2d 481 (Tex.Cr.App.1983); Lopez v. State, 884 S.W.2d 918, 921 (Tex.App. - Austin 1994, pet=n ref=d); Rogers v. State, 828 S.W.2d 221, 223 (Tex.App. - Dallas 1992, pet=n ref=d). Both issues for review are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

July 18, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.