GARY WAYNE BARRANCEFROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00650-CR
 
GARY WAYNE BARRANCEFROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, BAKER AND OVARD
OPINION BY JUSTICE OVARD
JUNE 27, 1989
 
        Gary Wayne Barrance was convicted by a jury of burglary of a habitation. Punishment, enhanced by one prior conviction, was assessed by the jury at fifty years' confinement. In his sole point of error, Barrance contends that the evidence is insufficient to sustain his conviction. We affirm the trial court's judgment.
        At approximately 11:30 a.m. on March 11, 1988, two Dallas police officers responded to a call to a burglary in progress. After approximately two minutes, they arrived near the location of the burglary. They observed two males coming out of an alley about a block and a half from the burglarized habitation. One of the men was carrying a green garbage bag, which appeared to contain a large rectangular object. As the officers approached, both males attempted to run past them. Barrance was identified as the man carrying the garbage bag. As he ran, he dropped the bag which contained a VCR, clock radio, and bottle of Hennessy cognac. One officer initially pinned Barrance to a fence, but he broke free and fled. Both Barrance and the other man were soon apprehended in the same neighborhood where the burglary occurred. The officers were able to locate the burglarized house.
        Brenda C. Lewis, the owner of the burglarized habitation, testified that the VCR, clock radio, and bottle of Hennessy cognac were her property. This property was stolen from inside her habitation without her consent. She recognized Barrance as a person that she had seen "hanging out" in her neighborhood. She did not give him consent to enter her habitation or to take her property. An officer testified that he learned that Barrance lived across the street from Lewis. Barrance's palm print was lifted from an air conditioning unit that was removed from a window during the burglary. The print was located on an area of the unit that indicated that Barrance had been holding the unit.
        In his sole point of error, Barrance contends the evidence is insufficient to sustain his conviction, under the trial court's specific charge. Prior to trial, the indictment charged Barrance with the burglary of a habitation with the intent to commit theft in the abstract. At trial, the court's charge to the jury went further than the language in the indictment, requiring that the elements of theft be proved by the evidence. The charge required that in order for Barrance to be found guilty of burglary of a habitation, the jury would need to find that Barrance committed the burglary: "with the intent to commit theft, to wit: with the intent to unlawfully appropriate property of Brenda C. Lewis, with the intent to deprive the said Brenda C. Lewis of said property without the effective consent of the said Brenda C. Lewis."
        Barrance argues that the sufficiency of evidence to support a conviction must be viewed in light of the charge that was given to the jury. Ortega v. State, 668 S.W.2d 701, 706. (Tex. Crim. App. 1983); Benson v. State, 661 S.W.2d 708, 714 (Tex. Crim. App. 1982). Thus, he argues, the additional elements of the theft included in the charge were not proved by the evidence: specifically, that the evidence is insufficient to prove he entered the habitation with the intent to appropriate any property of Lewis, or that he intended to deprive Lewis of any property.
        In determining the sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983). In circumstantial evidence cases, the above-stated standard is met if the evidence excludes every reasonable hypothesis except the accused's guilt. Carlsen, 654 S.W.2d at 449.
        We apply the sufficiency of the evidence standard to the charge presented by the trial court. See Benson, 661 S.W.2d at 714. The jury may draw reasonable inferences from basic facts to ultimate facts. Van Guilder v. State, 709 S.W.2d 178, 179 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1169 (1986). In the present case, Lewis had previously seen Barrance in the neighborhood. An officer testified that Barrance actually lived across the street from Lewis. The reasonable inference is that he entered her habitation with the specific intent to appropriate and deprive Lewis of the property.
        A presumption of guilt of theft, sufficient to sustain a conviction for the offense of theft, may arise from the accused's possession of recently stolen property, if the possession is personal, recent, and unexplained. Todd v. State, 60l S.W.2d 718, 720 (Tex. Crim. App. 1980). Shortly after the burglary, Barrance was identified as personally possessing the stolen property owned by Lewis. He provided no explanation for his possession.
        Flight is also a circumstance from which guilt may be inferred. Cantrell v. State, 731 S.W.2d 84, 91 (Tex. Crim. App. 1987). Barrance fled when the officers approached him. He physically broke loose from one officer for a short period of time.
        Additionally, fingerprints alone may be sufficient to prove a person committed a burglary. See Patterson v. State, 650 S.W.2d 453, 455 (Tex. Civ. App.--Houston [14th Dist.] 1982, no writ). Barrance's palm print was lifted from an air conditioning unit which was removed during the burglary, from a window of the burglarized habitation. The print was located on the unit in an area indicating that Barrance was holding the unit.
        The evidence, when viewed in the light most favorable to the verdict, is such that a rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the offense contained in the jury charge, and the evidence excluded every reasonable hypothesis other than appellant's guilt. Appellant's sole point of error is overruled.
        The trial court's judgment is affirmed.
                                                  
                                                  JOHN OVARD                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00650.F
 
 
 
File Date[01-02-89]
File Name[880650]