DANNY WAYNE WHITAKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed October 19, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00264-CR
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DANNY WAYNE WHITAKER, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F89-94942-MP
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O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion Per Curiam
        Danny Wayne Whitaker was convicted in a jury trial of the offense of burglary of a habitation. Punishment, enhanced by a prior conviction, was assesed at twenty years' confinement and a $1,000 fine. Whitaker claims that the evidence was insufficient to support his conviction. We disagree and affirm the judgment of the trial court.
        The State called three witnesses in its case-in-chief. Glenda Robertson, the sister of the complainant, testified that on August 14, 1988, she was living in an apartment with her sister. She returned to the apartment and found that a number of items had been taken, including the refrigerator. The following morning, she saw Whitaker, the next-door neighbor, moving out of his apartment; the refrigerator from her sister's apartment was included among the items he was taking. She then went into his apartment and found a chair, a radio, a jewelry box containing some jewelry, a telephone, and a fan. She recognized each of these objects as belonging to her sister. Outside the apartment, she found a tire and an exercise machine that belonged to her sister.
        Joyce Clark Sowah, the complainant, testified that at the time of the burglary, she was in California visiting her brother. On approximately August 11, another of her brothers called her to tell her that her apartment had been burglarized. When she had left on August 5, she had given her brother permission to enter her apartment to remove her more valuable items so they would not be stolen. He took her dinette table, chairs, a small table, and some pictures. She also testified that other than her brother, only her sister and the apartment manager had permission to enter her apartment. When she returned to Dallas, she identified as hers several items found in Whitaker's possession at the time of his arrest. Among these items were a radio, a toaster-oven, a telephone, a tire, a jewelry box containing jewelry, a chair and a rowing machine. She described special characteristics of each of the items which allowed her to identify the objects as hers. She did not consent to anyone taking these items. She also identified Whitaker as her next-door neighbor. Finally, she testified that there was a hole in one of her closets between her apartment and Whitaker's apartment. The hole was large enough for a person of Whitaker's size to pass through. She also testified that Whitaker was aware of the hole, because he told her that his apartment had been broken into by someone who crawled through the hole.
        Norma Prince testified that on August 12-15, 1988, she was the manager of the Enchanted Hills Apartments, where the burglary took place. She testified that Whitaker had been a maintenence man at the apartments until July 12, 1988, when he was terminated. On August 15, 1988, she had asked that a writ of execution be served on Whitaker since he had not moved out of his apartment after being evicted for non-payment of rent. As she arrived at the apartment with other employees of the apartments, she saw someone coming out the back door of Whitaker's apartment with a refrigerator. She saw that the refrigerator was from the complainant's apartment. She recognized the refrigerator because it had distinctive peel-off stickers on it. She then called the police. She also said that on August 12, she had gone to the complainant's apartment to check for damage following a sewer backup. At that time, the refrigerator was gone from the apartment. Finally, she testified that she never saw any property sitting outside either of the apartments on her daily inspections of the apartment complex; if she had seen anything outside, it would have concerned her, since none of the property belonged outside.
        Two witnesses testified on Whitaker's behalf. Charlie Mae Davis testified that she runs regular garage sales from her home. She testified that in late July or early August 1988, Whitaker bought an oscillating fan and a telephone from her. She also admitted that she had been convicted twice of forgery.
        Blanche Townsend testified that in August 1988, she was living with Whitaker. During the first week of August, she saw a truck at the complainant's apartment. She saw two men removing objects; she could not identify the objects. She also said that Whitaker had told her in early August that he had obtained an oscillating fan and a telephone at a garage sale. In addition, appellant told her that he had gotten a refrigerator "from outside". On cross-examination, she admitted that she had been sitting in the courtroom and heard testimony of the State's witnesses. She also characterized her relationship with appellant as "close" and said she did not want anything bad to happen to him.
        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). This test applies equally to direct and circumstantial evidence cases. Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984). In circumstantial evidence cases, a finding of the elements of the offense beyond a reasonable doubt is not rational if the evidence does not exclude reasonable hypotheses other than the guilt of the defendant. Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983).
        We note that Whitaker does not claim that no burglary occurred; rather, he claims that the jury could not have found that he commited the burglary. We disagree. At the time of his eviction, he was found in possession of numerous items belonging to the complainant. Unexplained possession of recently stolen items, together with independent evidence of a burglary, may constitute sufficient evidence to support a verdict of guilty. Harris v. State, 656 S.W.2d 481, 483 (Tex. Crim. App. 1983). The State is not required to disprove an explanation for the possession unless it was made at the time the accused was found in possession of the property. Espinosa v. State, 463 S.W.2d 8, 10 (Tex. Crim. App. 1971). Clearly, the testimony of the State's witnesses establishes that a burglary occurred; a large number of items were removed from the complainant's apartment without her consent. In addition, the explanantion for possession of the refrigerator that Whitaker found the refrigerator "outside" conflicts with the testimony of Norma Prince, who said that she never saw any items sitting outside the apartments. The jury, as the trier of fact, is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Even if we take the testimony of Whitaker's witnesses as true, it explains his possession of only four of the items. There is no explanation in the record for his possession of the complainant's jewelry box, or of the chair. As a result, we conclude that Whitaker's unexplained possession of items stolen from the complainant's apartment was sufficient to support his conviction of burglary of a habitation. Whitaker's point of error is overruled.
        The judgment of the trial court is affirmed.
                
                                                                          PER CURIAM
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
890264PF.U05
 
 
 
File Date[10-18-89]
File Name[890264PF]