MILTON HORACE FRAZIER, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 21, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01220-CR
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MILTON HORACE FRAZIER, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F88-82325-TI
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OPINION PER CURIAM
Before Justices McClung, Lagarde and Ovard
        Milton Horace Frazier was convicted in a bench trial of burglary of a habitation. The court assessed punishment at twenty-five years' confinement. In his sole point of error, appellant contends that the trial court erred in overruling his motion for instructed verdict because the evidence was insufficient to support the conviction. We disagree and affirm.
        James Harris testified that on April 13, 1988, he went to bed between 10:30 and 11:00 p.m. At 6:45 a.m., April 14, 1988, he left his house and noticed that the window of his pickup truck was broken, the garage door opener was missing from the truck, and the garage door was open. When he examined the garage, he noticed that a floor jack, buffer, battery charger, tool box, and radar detector were missing. Missing from his pickup truck was another radar detector, tapes, a pager, and the garage door opener. The property was valued at $2,149.00. Harris testified that he did not know appellant and had not given appellant or anyone else permission to enter his garage.
        Forllina Renaflor testified that she worked at the 24 Hour Pawn Shop. On April 14, 1988, appellant pawned several items at the shop, including a Craftsman saw (which the complainant testified was not his), a sander, a radar detector, and two tool boxes with tools inside. Renaflor gave him $70.00 for these items. She identified the pawn ticket and appellant.
        Appellant testified that he did not burglarize Harris's house. He bought the items he pawned at a flea market under the Lamar Bridge. There are people under the bridge twenty-four hours a day buying, selling, gambling. He bought the stuff from a black guy with a medium build. He did not know the man's name. He might have dealt with him before, but he was not sure. He bought the items for $10.00, sometime on the evening of April 14, before the beer store closed around 10:00. Appellant testified that he had pawned items at the 24 Hour Pawn Shop maybe one hundred times. He usually bought the items under the bridge and then sold them for more at the pawn shop. Appellant admitted he had a prior conviction for burglary of a vehicle.
        Appellant complains that the trial court erred in overruling his motion for instructed verdict because the evidence was insufficient to show his involvement in the burglary. Although appellant filed a written motion for instructed verdict prior to trial, there is nothing in the record to show that the motion was called to the attention of the trial court or that the trial court ruled on the motion. Further, appellant put on evidence and did not renew his motion for instructed verdict. Appellant has waived any error in the trial court's overruling his motion for instructed verdict. Kuykendall v. State, 609 S.W.2d 791, 794 (Tex. Crim. App. [Panel Op.] 1980). Nevertheless, we will, in the interest of justice, consider appellant's point of error a challenge to the sufficiency of the evidence to support the conviction.
        The standard for appellate review of the sufficiency of the evidence is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988); Garrett v. State, 682 S.W.2d 301, 304 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1009 (1985). Where there is independent evidence of a burglary, the accused's unexplained possession of recently stolen goods may constitute sufficient evidence of guilt to support a conviction. Harris v. State, 656 S.W.2d 481, 483 (Tex. Crim. App. 1983); Jackson v. State, 645 S.W.2d 303, 306 (Tex. Crim. App. 1983).
        Appellant contends that an inference of guilt does not arise from his possession of the pawned items because he offered an explanation for his possession of the merchandise when he testified that he purchased it from a man under a bridge. He argues that the State's failure to rebut the explanation renders the evidence insufficient to support the conviction. Before an explanation is required to be rebutted by the State, it must be made by the accused at the time he was found in possession of the property and first questioned. Espinosa v. State, 463 S.W.2d 8, 10 (Tex. Crim. App. 1971); Jayroe v. State, 707 S.W.2d 652, 654 (Tex. App. -- Texarkana 1986, pet. ref'd); Durant v. State, 688 S.W.2d 265, 267 (Tex. App. -- Fort Worth 1985, pet. ref'd). There is no evidence that appellant made any explanation when first questioned about his possession of the pawned items, so the State had no responsibility to disprove his explanation.
        Further, appellant's explanation given at trial is inherently suspect. He testified that he purchased property worth approximately $2,000.00 and pawned for $70.00 for only $10.00. The trier of fact was entitled to disbelieve appellant's explanation, and to consider his credibility in light of his past criminal record and motive for making a self-serving statement. See Durant, 688 S.W.2d at 267 (fact-finder free to disbelieve defendant's girlfriend's testimony that defendant found stolen property, considering her relationship to accused and her prior conviction for burglary); see also Chasco v. State, 154 Tex. Crim. 239, 226 S.W.2d 447, 448 (1950) (jury free to reject defendant's explanation as unreasonable).
        We conclude that appellant's possession of recently stolen property, that possession unsatisfactorily explained, constitutes sufficient evidence to support the burglary conviction. We overrule appellant's point of error and affirm the trial court's judgment.
                 
                                                          PER CURIAM
Do Not Publish
Tex. R. App. P. 90
881220F.U05
 
 
File Date[12-20-89]
File Name[881220F]