WAYNE LETRUCE LEE, Appellant v. THE STATE OF TEXAS, Appellee

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Affirmed and Opinion filed November 14, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01488-CR
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WAYNE LETRUCE LEE, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-87058-P
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OPINION PER CURIAM
Before Justices Whitham, Rowe and Whittington
        Wayne Letruce Lee was convicted in a bench trial of the offense of burglary of a habitation. Punishment was assessed at seven years' confinement. Appellant claims the evidence is insufficient to support his conviction. We disagree and affirm the judgment of the trial court.
        The complainant testified that on August 27, 1988, she arrived home at approximately 9:00 p.m.. When she entered her home, she saw that a window in her bedroom was up and her air conditioner was gone. In addition, the lamp was knocked off the night stand in front of the air conditioner, and there were scuff marks from a shoe on her wall directly below the window; when she had left her home that morning, the lamp was on the table and no scuff marks were on the wall. She testified that she had not consented to anyone entering her home to take her air conditioner. She also identified appellant as a neighbor of hers; she said that he lived directly behind her, and that his yard was separated from hers by a fence.
        Ursela Lamb, a Dallas police officer, testified that on August 27, 1988, she and her partner responded to a burglary call and arrived at the complainant's home between 9:00 and 9:30 p.m.. She testified that she saw black streaks on the wall of the bedroom, and that the bedroom appeared to have been ransacked. She spoke with Phyllis Walton, a neighbor of the complainant, who told her that she had seen appellant take the air conditioner unit and carry it from the complainant's back yard to his home.
        Phyllis Walton testified that at approximately 9:00 p.m. on August 27, 1988, she noticed that the complainant's air conditioner was gone. Shortly thereafter, she saw appellant carrying an air conditioner; he was at the gate to his back yard. She testified that the air conditioner carried by appellant was the same color as the one taken from the complainant's window. She also testified that the air conditioner had been in the complainant's window at 7:00 p.m. on the night of the burglary.
        Appellant's mother testified on his behalf. She testified that for an extended period prior to the date of the burglary, she had lived in Pleasant Grove due to illness; she had her air conditioner with her during this period. At some point "in August or September", she returned home; a week before she returned home, she had appellant take the air conditioner home. She was at home on the date of the burglary; in addition, the air conditioner was in the window of her home when police came to her home, although she could not say when it had been put in the window.
        In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating the evidence in the light most favorable to the verdict, 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); Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). In circumstantial evidence cases, guilt beyond a reasonable doubt is not a rational finding unless the evidence allows no reasonable hypothesis other than the guilt of the accused. Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983).
        Appellant first argues that there was no evidence that he entered the complainant's dwelling. Burglarious entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976). In the present cause, complainant's house showed signs that someone had entered. Smudges were found in the bedroom around the window where the air conditioner was located; they had not been there on the morning of the offense. In addition, the lamp that belonged on the table next to the bed had been knocked on the floor; the lamp had been on the table on the morning of the offense. In addition, the complainant testified that no one had her permission to enter the house. We conclude that the evidence was sufficient to show an entry. Compare Clark v. State, 543 S.W.2d at 127 (evidence that condition of interior of vehicles did not match condition prior to alleged burglary sufficient to show burglarious entry).
        The complainant testified that Phyllis Walton had told her that appellant had her air conditioner. This hearsay testimony, which was not objected to in the trial court, may be considered in determining the sufficiency of the evidence. Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986); Tex. R. Crim. Evid. 802. Appellant argues that Phyllis Walton was not credible. Phyllis Walton gave conflicting testimony, first saying that she had seen appellant with the air conditioner, then saying she was not sure that what she saw appellant carrying was, in fact, an air conditioner. However, the trial court, as the trier of fact, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. 1978). As a result, we cannot simply substitute our judgment for that of the trial court on the issue of credibility. Her testimony placed appellant, during the two-hour period in which the burglary occurred, walking from the back yard of the complainant's house carrying an air conditioner of the same color as the one taken from the complainant's house. Finally, appellant argues that Phyllis Walton's testimony was not corroborated. The fact that her testimony was not corroborated does not render the evidence insufficient. Edmonds v. State, 407 S.W.2d 783, 784 (Tex. Crim. App. 1966). We conclude that the evidence leaves no reasonable hypothesis other than the guilt of appellant. Appellant's point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
Do Not Publish
Tex. R. App. P. 90
 
881488.U05
 
 
File Date[11-14-89]
File Name[881488F]

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