KEVIN LEE KOONCE,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00328-CR
 
KEVIN LEE KOONCE,FROM A DISTRICT COURT
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, ROWE AND OVARD
OPINION BY JUSTICE OVARD
APRIL 10, 1989
        Appellant, Kevin Lee Koonce, appeals a jury conviction of burglary. The court assessed punishment at 13 years' confinement. Appellant asserts in two points of error, that: 1) the evidence is insufficient to support a finding that the entry of the habitation was done "with the intent to commit a felony (in this case, sexual assault) or theft", and 2) the trial court erred in disclosing to the jury that the appellant was in custody during the trial. We hold appellant's points to be without merit and, accordingly, affirm the judgment of the trial court.
        The complainant in this case had recently moved into a new apartment. She came home from work one night about 10:30 p.m. She proceeded towards a bedroom, turned on the light, and discovered the appellant hiding in a closet. The complainant recognized appellant as a maintenance man who worked at the apartment complex.
        Appellant came out of the closet, grabbed complainant, turned off the light, and asked the complainant if she wanted to go into her bedroom or the front room. They proceeded to the front room, where complainant escaped from the appellant and ran to a neighbor's house. The neighbors called the police. Later, the complainant was able to pick the appellant out of a photographic lineup.
        In his first point of error, appellant asserts that the evidence, presented at trial, is insufficient to support a finding that the entry of the habitation was done "with the intent to commit a felony (sexual assault) or theft." Burglary of a habitation is committed if an individual enters a habitation, not then open to the public, with the intent to commit a felony or theft. TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 1977). Because we hold the evidence is sufficient to support a finding "with the intent to commit theft," we need not discuss the "intent to commit a felony (sexual assault)."
        In reviewing the sufficiency of the evidence on appeal, it can be presumed that an entry made at night without consent is made with the intent to commit theft. LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986). Intent may be inferred from the circumstances. Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982).
        The evidence in this case shows appellant entered complainant's apartment at night without her consent. Appellant was found in the apartment, hiding in the closet. He had no explanation for being there. From these facts, the jury could infer that the entry was made with the intent to commit theft.
        Appellate review of sufficiency is limited to determining whether, viewing evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lopez v. State, 630 S.W.2d 936 (Tex. Crim. App. 1982). We hold, in viewing the evidence in a light most favorable to the prosecution, that the jury could have found, beyond a reasonable doubt, the element of intent to commit theft necessary to sustain a burglary conviction. Appellant's first point of error is overruled.
        Appellant contends, in his second point of error, that the trial court erred in disclosing to the jury that appellant was in custody during the trial. Appellant complains of the following remark, made by the court on the second day of trial:
    THE COURT: How are ya'll doing this morning? Sorry to keep you waiting. It was not something that was designed or just to inconvenience you, [sic] I was just as inconvenienced as you were because the jail didn't bring the Defendant down from the jail today so we could begin our trial. So I don't have a whole lot of apologies since I waited just as much as y'all did, impatiently as a matter of fact [sic].
Appellant argues that the court's remark impaired the jury's presumption of his innocence.
        We believe the judge's remark constituted error. However, in order to constitute reversible error, a comment by the judge must be reasonably calculated to benefit the State or prejudice the rights of the defendant. Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986), cert dismissed, U.S. 107 S. Ct. 2455 (1987). The comment by the trial judge, in this case, was not calculated to benefit the State or prejudice the rights of the appellant. The remark was made only once and the court did not repeatedly refer to the fact that appellant was in custody.
        Furthermore, in the court's charge to the jury, the judge properly instructed:
            The fact that a defendant has been arrested, confined, or indicted for, or otherwise charged with an offense gives rise to no inference of guilt at this trial.
 
            The burden of proof in all criminal cases rests upon the State throughout the trial, and never shifts to the defendant.
 
            The defendant is presumed to be innocent and he may not be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt and in case you have a reasonable doubt as to the defendant's guilt after considering all the evidence before you, and these instructions, you will acquit him.
        We may presume that the jury followed the instructions given by the trial judge. See Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex. Crim. App. 1983), overruled in part on other grounds, Lawrence v. State, 700 S.W.2d 208, 213 (Tex. Crim. App. 1985); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987), cert denied, U.S. , 108 S. Ct. 248 (1987). In view of the court's jury instruction, we hold that the judge's comment to the jury is harmless error. We presume the jury followed the judge's instructions and, consequently, appellant received a fair and impartial trial. Accordingly, appellant's second point of error is overruled.
        The judgment of the trial court is affirmed.
                                                          
                                                          JOHN OVARD
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00328.F
 
 
File Date[01-02-89]
File Name[880328]