ISAAC STRONG, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Issued March 12, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00822-CR
............................
ISAAC STRONG, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-00056-IQ
.............................................................
OPINION
Before Justices Whittington, O'Neill, and Francis
Opinion By Justice Whittington
        Isaac Strong appeals his conviction for burglary of a habitation. After the jury found appellant guilty, the trial judge assessed punishment at twenty years' confinement. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction and that the prosecutor's improper jury argument harmed appellant. We affirm the trial court's judgment.
        In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Under these issues, appellant claims there is a complete lack of evidence linking him to the burglary. We disagree.
        When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In circumstantial evidence cases, it is unnecessary for every fact to point directly and independently to appellant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983)).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. The jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford “due deference” to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Although the reviewing court is permitted “to substitute its judgment for the jury's” when considering credibility and weight determinations, it may do so only “'to a very limited degree.'” Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 417).
        A person commits the offense of burglary if, without the effective consent of the owner, the person enters a habitation and commits a felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). A person commits theft if he appropriates property without the owner's effective consent with intent to deprive the owner of said property. Tex. Pen. Code Ann. § 31.03(a), (b)(1) (Vernon Supp. 2006). The identity of one committing a criminal offense may be conclusively proved by fingerprint comparison alone if the evidence tends to show the fingerprints were made at the time of the offense. Scott v. State, 968 S.W.2d 574, 578 (Tex. App.-Austin 1998, pet ref'd) (citing Grice v. State, 142 Tex. Crim. 4, 151 S.W.2d 211, 222 (1941)); see Washington v. State, 721 S.W.2d 502, 503 (Tex. App.-Houston [14th Dist.] 1986, pet. ref'd) (fingerprints alone are sufficient to sustain finding of guilt if evidence shows fingerprints must necessarily have been made at time of offense) (citing Nelson v. State, 505 S.W.2d 271, 273 (Tex. Crim. App. 1974) and Wheat v. State, 666 S.W.2d 594, 596 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd)).
        Although appellant claims the evidence is legally and factually insufficient to support his conviction, we cannot agree. At trial, Jodie Mayfield testified she and her roommate, Susan McDonald, lived in a second-floor apartment in Irving. On the morning of February 28, 2005, they left the apartment around 7:00 a.m. to take their cat to be neutered at the SPCA of Texas. When they returned about one and one-half to two hours later, they noticed the window by the front door was broken. The apartment had been broken into and ransacked. Mayfield's purse, containing her driver's license, social security card, and car keys, was gone. The other items taken were mostly CDs and cash. Mayfield testified she was sure the front door and the sliding glass patio door were locked when the women left their apartment. However, when they returned home, both doors were unlocked, and the patio door was open. Mayfield testified she spoke with her neighbors, one of whom heard a knock on the door around the time the intruder would have broken in. Mayfield testified she did not know appellant and had not seen him before trial. According to Mayfield, appellant did not have any reason to be in her apartment. Mayfield had lived in that apartment for several months prior to the burglary and had cleaned the apartment since moving in.
        Irving police officer Travis Hall testified he responded to the burglary call. He dusted the apartment for fingerprints, testing each area or item that Mayfield identified as one that had been touched or moved. Officer Hall located one comparable print from the inside portion of the sliding glass patio door. The officer took the print from the door and compared it to appellant's fingerprints. The print from the inside of Mayfield's sliding glass patio door matched appellant's left ring finger. Officer Hall testified that a fingerprint could not be smeared and be useable which is why he recovered only one comparable print from the burglary scene.
        Officer Curtis Chism testified his role in the investigation was to confirm Officer Hall's fingerprint. He examined the fingerprint lifted from Mayfield's apartment and confirmed it matched appellant's print.
        The record shows Mayfield's apartment was broken into and ransacked. Her purse, several CDs, and money were taken. One comparable print, found on the inside of the sliding glass patio door, matched appellant's left ring finger. Mayfield did not know appellant and testified he had no reason to be in her apartment. And she had cleaned the inside of the apartment since moving in several months before. From these facts, we conclude a rational jury could infer appellant entered Mayfield's apartment without her consent and appropriated Mayfield's property without her effective consent with the intent to deprive Mayfield of the property. See Tex. Pen. Code Ann. §§ 30.02(a)(3), 31.03(a), (b)(1). After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for burglary of a habitation. We overrule his first issue.
        Furthermore, after reviewing all the evidence in this case and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude the great weight and preponderance of evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417. Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. See Watson, 204 S.W.3d at 417. We overrule appellant's second issue.
        In his third issue, appellant claims the prosecutor's argument that “the victims were afraid to live in the apartments after the offense” and that they were “lucky they did not come home during the offense” injected a “fear element” into the jury deliberations and was therefore improper. Appellant did not object to the prosecutor's jury argument. A defendant's failure to object to allegedly improper jury argument waives any complaint on appeal. See Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); Blue v. State, 41 S.W.3d 129, 137 (Tex. Crim. App. 2000);Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Because appellant did not object at trial, he has forfeited the right to complain about the argument on appeal. We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060822F.U05