RONNIE LEON MATHIS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 21, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01516-CR
No. 05-88-01517-CR
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RONNIE LEON MATHIS, 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 Nos. F88-88754-NP/F87-81013-P
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OPINION PER CURIAM
Before Justices Whitham, Rowe and Whittington
        Ronnie Leon Mathis was convicted in a bench trial in Cause No. F88-88954-NP of the offense of burglary of a building. In Cause No. F87-81013-P, heard in the same proceeding, appellant's probation, received on his prior conviction of the offense of burglary of a building, was revoked. Punishment was assessed at ten years' confinement in Cause No. F88-88954-NP and five years' confinement in Cause No. F87-81013-P. Appellant claims that the evidence is insufficient to support both his conviction and the revocation of his probation. We affirm the judgments of the trial court.        
        The complainant testified that he is the operations manager for Alco Packaging. On September 21, 1988, he closed and secured the building at approximately 5:00 p.m.. He was the last person authorized to be in the building between that time and approximately 7:00 a.m. on September 22, when the shop reopened. Early in the morning of September 22, he received a call from his foreman; when he arrived at the building, he discovered that the front door was broken, and a rock was in the middle of the entryway. A Juki brand typewriter had been taken from inside the building; its serial number was H0023785. He also testified that he was the owner of the property, and that he did not consent to appellant entering the building between 5:00 p.m. on September 21, 1988 and 7:00 a.m. on September 22, 1988 to take the typewriter.
        An employee of the All Night Buy Shop testified that on September 21, 1988, he was at work when he bought a Juki typewriter. The person who sold the typewriter to him was named Mathis. The employee checked the signature against the identification proffered by the person selling the typewriter. When he bought the typewriter, he wrote its serial number on the sales ticket. Later, he identified State's Exhibit No. 1 as a pawn ticket. He read the ticket; the seller of the typewriter was Ronnie Mathis. He also identified State's Exhibit No. 2, a driver's license, as the identification that was presented to him by the person who sold the typewriter. He also said that appellant looked like the person whose picture appeared in State's Exhibit No. 2.
        Richard Benton, a Dallas police officer, testified that he had received information that a Juki typewriter had been stolen in a burglary; its serial number was H0023785. He later received information that a Juki typewriter had been sold to the All Night Pawn Shop; when he went to the pawn shop, he found that the serial number on the typewriter matched that of the stolen typewriter. He then identified State's Exhibit No. 1 as the pawn ticket he recovered.
        Rey Flores, a probation officer with the 203rd Judicial District Court, testified that appellant had paid a total of $50 on his probation fees, attorney fees, and restitution in Cause No. F87-81013-P since the onset of the case, May 15, 1987. At the time the motion to revoke was filed, he was delinquent in the amount of $670 on his probation fees, $250 on his court-ordered attorney fees. On cross-examination, he testified that appellant had represented each time he reported to the probation authorities that he was employed. He also said that appellant reported regularly to his probation officer.
        Appellant testified on his own behalf. He admitted that he sold a typewriter to the All Night Pawn Shop on the night of October 21 or November 21, 1989. He said that a friend had come to his house and asked him to sell the typewriter for him, because the friend had no identification. Appellant did as the friend asked, and received $5 for gas. When police later came to him to ask him how he came into possession of the typewriter, he did not tell them about the friend. On cross-examination, he gave the name of the friend, admitted that he knew where the friend lived, but said that he did not subpoena the friend to come and testify on his behalf.
Cause No. 05-88-1516-CR
        We will first address appellant's claim that the evidence is insufficient to support his conviction. In reviewing 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); Human v. State, 749 S.W.2d 832, 834 (Tex. Crim. App. 1988). In circumstantial evidence cases, a finding of guilt beyond a reasonable doubt is rational if the evidence excludes every reasonable hypothesis other than the guilt of the accused. Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983). In a bench trial, the judge is the sole judge of the credibility of witnesses and the weight to be given their testimony. Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. [Panel Op.] 1978).
        In arguing that the evidence is insufficient, appellant disputes that the typewriter he sold was the same typewriter stolen. He places great weight on the testimony of the employee of the All Night Pawn Shop. When the employee read the serial number of the pawn ticket, he gave H0023758 as the serial number of the typewriter; this is obviously a mere transposition of numbers, because the ticket itself reflects that the number was H0023785. In addition, all other testimony was to the effect that the serial number of the typewriter sold by appellant was H0023785. This matched the number of the stolen typewriter given by the complainant. Accordingly, we find appellant's claim to be without merit.
        In addition, we find that the evidence establishes that within several hours of the burglary, appellant was in possession of the stolen typewriter. Unexplained possession of recently stolen property can constitute sufficient evidence to support a verdict of guilt of burglary. Jackson v. State, 645 S.W.2d 303, 306 (Tex. Crim. App. 1983). Appellant admitted to selling the typewriter to the pawn shop. However, he testified at trial that the typewriter was brought to him by a friend on either October 21 or November 21. The evidence reflects that the burglary and sale of the typewriter occurred on September 21. Compare Roberts v. State, 672 S.W.2d 570, 583 (Tex. App.--Fort Worth 1984, pet. ref'd) (evidence that accused pawned camera stolen in burglary held sufficient when appellant said he bought the camera elsewhere seventeen days after it was pawned). He also testified that although the person who gave him the typewriter was an old friend, and appellant knew where he lived, the friend had not agreed to testify, and appellant had not had him subpoenaed. We conclude that appellant's hypothesis that he was the innocent recipient of the stolen typewriter is not reasonable in light of the circumstances. Appellant's point of error in Cause No. 05-88-01516-CR is overruled. The judgment of the trial court is affirmed.
Cause No. 05-88-1517-CR
        We now turn to appellant's claim that the evidence was insufficient to support the revocation of his probation. The scope of review of a probation revocation is limited to determining whether the judge abused his or her discretion in revoking probation. Barnett v. State, 615 S.W.2d 220, 222 (Tex. Crim. App.), appeal dism'd, 454 U.S. 806 (1981). In a probation revocation proceeding, the State must prove by a preponderance of the evidence that the probationer has violated a term or condition of probation. Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App. [Panel Op.] 1981).
        Appellant claims that the evidence is insufficient to support the allegation that appellant burglarized the building without the effective consent of the owner, because a different owner was alleged in the motion to revoke than in the indictment. The record reflects that the owner named in the motion to revoke was the foreman for Alco. The complainant in the trial on the substantive offense also testified that no one consented to appellant entering the building. Evidence of lack of consent may be proven circumstantially. See Clark v. State, 500 S.W.2d 507, 508 (Tex. Crim. App. 1973). An "owner" includes a person with a greater right to possession than the actor. Tex. Penal Code Ann. § 1.07(a)(24) (Vernon 1974).
        The manager of Alco testified that the complainant named in the motion to revoke was his foreman. He also testified that he instructed the foreman to call police. Since the foreman had some form of agency relationship with the manager, we conclude that this evidence would be sufficient to allow the trial court to conclude that he had a greater right to possession than appellant. Since the manager testified that no agent of his gave consent to appellant's entering the building, we conclude that the evidence was sufficient to establish that the foreman did not consent to appellant's entry into the building.
        In addition, we have already concluded that the evidence was sufficient to establish beyond a reasonable doubt that appellant was guilty of burglary of a building. The standard in a trial on a substantive charge is higher than the standard in a probation revocation proceeding. Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. [Panel Op. 1978). As a result, we also conclude that the evidence was sufficient to establish appellant's guilt of the offense alleged in the motion to revoke probation.
        Appellant also contends that the evidence is insufficient to support the trial court's conclusion that appellant failed to pay his probation fees, attorney fees, and restitution. Appellant testified that he was unemployed for a significant period of time and could not pay his fees; however, the probation officer testified that appellant had claimed when he came in for his regular appointments that he was, in fact, employed. Appellant admitted being aware of his obligation to pay his fees.
        When the State alleges in a motion to revoke probation that a person failed to pay his fees, it has the burden of proving that the failure to pay was intentional. Tex. Code Crim. Proc. Ann. art. 42.12 § 8(c) (Vernon Supp. 1989). However, inability to pay is an affirmative defense; the probationer must prove his defense by a preponderance of the evidence. Stanfield v. State, 718 S.W.2d 734, 737-38 (Tex. Crim. App. 1986).
        In the present cause, there was conflicting evidence as to whether appellant was employed during the period he failed to pay his fees. The trial court was the sole judge of the credibility of the witnesses. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). The judge could have concluded that the testimony of the State was more credible than that of appellant; thus, we hold that the evidence was sufficient to support the conclusion that appellant failed to pay fees when he was able to pay.
        To summarize, we conclude that the trial court did not abuse its discretion in revoking appellant's probation. Appellant's point of error is overruled. The judgment in Cause No. 05-88-01517-CR is affirmed.
                                                  PER CURIAM
Do Not Publish
Tex. R. App. P. 90
 
881516.U05
 
 
File Date[11-20-89]
File Name[881516F]