KENNETH RAY JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 18, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00977-CR
No. 05-88-00978-CR
............................
KENNETH RAY JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F87-89114-UP & F88-94576-MP
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O P I N I O N
Before Justices Howell, Rowe, and Kinkeade
Opinion By Justice Rowe
        In a jury trial, Kenneth Ray Jackson, appellant, was convicted of burglary of a habitation. The jury sentenced appellant to twenty-five years' confinement. In a separate proceeding, the trial court revoked appellant's probation for his 1987 burglary of a building conviction and sentenced him to five years' confinement to run consecutively with the burglary of a habitation sentence. Appellant appeals from both proceedings.
        Appellant contends that the trial court abused its discretion in admitting State Exhibit No. 7 for all purposes. Appellant also challenges the sufficiency of the evidence to support a conviction of burglary of a habitation. We overrule these contentions and affirm the trial court's judgment.
        Appellant was charged with the burglary of a residence located at 1802 Fordham and belonging to complainant. As a child, appellant lived at this address with his grandmother. The burglar entered through a window into the back part of the house which had been converted into a beauty shop by the construction of a solid wall. The burglar tore through the wall separating the beauty shop from the living quarters and exited through the front door. Complainant testified that the burglar took beauty shop items and equipment, food items, and six dining room chairs described as silver chrome with bluish gray cushions.
        Complainant left the Fordham residence at 6:30 a.m. and discovered the burglary upon returning between 7:00 and 9:00 p.m. A neighbor of complainant testified that he saw appellant coming out of the side gate of complainant's residence with two blue chairs around 7:00 or 7:30 a.m.
        Complainant confronted appellant with the burglary. Appellant denied having taken anything belonging to complainant and offered to help her get her things back. Complainant testified that when she warned appellant that she would have him arrested, appellant threatened her, saying that she "would be no more" if she had him arrested.
ADMISSION OF STATE EXHIBIT
 
        During the punishment and sentencing phase, the trial court admitted State's Exhibit No. 7 for all purposes. The trial judge overruled an objection by appellant that the exhibit should be admitted only for record purposes because of the prosecutor's offering statement, "For the record, your Honor, we would offer State's Exhibit 7." The prosecutor made the statement during his examination of a fingerprint technician with the sheriff's department.
            Q. Let me show you what has been marked as State's Exhibit No. 7. Flip that over and see if you recognize that.
 
            A. Yes.
 
            Q. What is it?
 
            A. It is fingerprints that I took this morning at 8:13 a.m., 7/15 of '88, of Mr. Kenneth Jackson.
 
            Q. Do you see him here in the courtroom today?
 
            A. Yes, sir, I do.
 
            Q. Would you point him out, please?
 
            A. The gentleman in the shirt, yellow shirt over there.
 
            MR. UHL: Your Honor, let the record reflect the witness has identified the defendant.
 
        Q. (By Mr. Uhl) Did I ask you to compare those prints on State's Exhibit No. 7 with some other fingerprints that I handed you?
 
        A. Yes.
 
        MR. UHL: For the record, Your Honor, we would offer State's Exhibit 7.
 
        THE COURT: Any objections?
 
        MR. GRETT: We object to it for all purposes, we don't have any objection to it for the record.
 
        THE COURT: Well, overruled, it is admitted for all purposes.
                 The trial court's rulings and conduct of a trial are largely discretionary. Schroeder v. Brandon, 141 Tex. 319, 325, 172 S.W.2d 488, 491 (1943). The test for abuse of discretion is not whether in the opinion of the reviewing court facts present an appropriate case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
        Appellant contends that the phrase "for the record" as used by the prosecutor in offering Exhibit 7 must be interpreted to mean "for record purposes only". We disagree. As used, the phrase is ambiguous. Appellant's objection merely called the problem of ambiguity to the trial court's attention for appropriate resolution. The context in which the offer was made suggested that the prosecutor sought to place the exhibit fully into evidence for the nonrecord purpose of removing any uncertainty as to appellant's identity. Also, when other exhibits had been offered for record purposes only, such limitation had been more affirmatively expressed. Under these circumstances, the trial court did not act arbitrarily or unreasonably in construing the prosecutor's remarks as offering the exhibit for all purposes. Since the trial court did not abuse its discretion, we overrule appellant's point of error.
SUFFICIENCY OF THE EVIDENCE
        Appellant complains that the evidence is insufficient to support his conviction for burglary of a habitation. FN:1 The standard of review for challenges to sufficiency claims is whether viewed in the light most favorable to the judgment 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, 319 (1979); Butler v. State, 769 S.W.2d 234, 237 (Tex. Crim. App. 1989). In an appeal to the sufficiency of the evidence, if there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that the guilt has been shown beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983). The identical standard is applied to sufficiency challenges involving circumstantial evidence. Wilson v. State, 654 S.W.2d 465, 471 (Tex. Crim. App. 1983).
        A person commits burglary if he enters a building not open to the public with intent to commit theft and if he enters without effective consent of the owner. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 1988). The jury heard testimony from complainant that the burglar entered the house without her permission and took several items including dining room chairs with bluish gray cushions. A neighbor testified that he saw appellant leaving the premises with two blue chairs within the period that the burglary was committed. Appellant lived in the Fordham house as a child, and the movement of the burglar from the beauty shop to the living quarters suggests that the burglar was acquainted with the house and knew which wall to tear into. The jury heard further testimony that appellant threatened complainant and offered to get her things back when she confronted him with the burglary. Appellant denied the burglary when approached by complainant. Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). The factfinder was entitled to disbelieve appellant's testimony and believe instead that appellant did enter complainant's house with intent to commit theft. The circumstances entitled the jury to have found beyond a reasonable doubt that the essential elements of burglary of a habitation were established. Accordingly, we overrule appellant's remaining two points of error.
REVOCATION OF PROBATION
        Appellant also appealed separately from the revocation of his probation for his prior burglary of a building conviction. In his brief, however, appellant fails to present this contention in a point of error. In the absence of an assigned point of error, supported by argument and authority, appellant has presented nothing for review. Tex. R. App. P. 74(d); McWherter v. State, 607 S.W.2d 531, 536 (Tex. Crim. App. 1980); Cox v. State, 762 S.W.2d 710, 714 (Tex. App.--Houston [1st District] 1988).
        The judgment of the trial court is affirmed in both causes.
 
 
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
 
 
DO NOT PUBLISH
Tex. R. App. P. 90.
 
880977F.U05
 
FN:1 In contending that the evidence was insufficient to support a conviction for the burglary of a habitation, appellant argued that the building at 1802 Fordham was not a habitation because it was an unoccupied rent house. The testimony established however, that the complainant and her family currently lived at the house. Complainant testified that she and her family had stayed in the Fordham house the night before the burglary. Several of the missing items, including canned goods and frozen meat indicate that the house was occupied.
File Date[10-18-89]
File Name[880977F]