ROBERT WAYNE BROWN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 9, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00141-CR
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ROBERT WAYNE BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-06-25
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OPINION
Before Justices Morris, FitzGerald, and Lang
Opinion By Justice Morris
        A jury convicted Robert Wayne Brown of burglary of a habitation. He complains on appeal that the trial court erred in admitting evidence of extraneous offenses and that the evidence against him is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
Factual Background
        Gerry Rhue and his wife briefly left their Rockwall, Texas home on a Sunday morning to take care of a neighbor's pets. While they were gone, someone burglarized their house, stealing jewelry, the wife's purse, and a black nylon laptop computer case. The burglar also took sunglasses and a satellite radio from Rhue's car. As Rhue and his wife returned to their home, they saw appellant walking “briskly” near their fence and holding a black nylon case. At the time, Rhue wondered why a maintenance man was in the neighborhood on a Sunday morning. It was not until he discovered his laptop case had been stolen that he realized appellant had been carrying the computer case.
        The Rhues' neighbor, Don Channell, noticed a strange car parked in front of the house across the street from him. Channell monitored the house across the street because a pilot lived in the house and it was often vacant. The backyard for the house Channell watched abuts and shares a fence with the backyard of the Rhues' house.
        Channell approached the unfamiliar car and felt the hood, which was “lightly warm,” but not emitting any steam or liquid. When he noticed that the car's license plate appeared to be altered, he called the police. He returned to his front porch and watched as appellant, carrying a black laptop bag, quickly approached the car, revved the engine three times, and left the scene with a gold van right behind him. Neither vehicle stopped at a nearby stop sign. In Channell's opinion, the woman driving the gold van was acting in concert with appellant.
        A few weeks after the burglary, based on the license plate information gathered by Channell and the identification of appellant by both Channell and Rhue in a photographic lineup, police obtained a warrant for appellant's arrest at his apartment in Dallas. The officers involved in the arrest were in uniform, and some were wearing raid jackets with the word “Police” written across them. At appellant's apartment complex, they found the car with the license plate that appeared to have been altered. At appellant's apartment, they were admitted inside by a woman who told them she lived there. The woman gave the officers permission to search the apartment. None of the Rhues' belongings were found in the apartment. An officer testified that this was not unusual in the case of a burglary because stolen items are usually pawned as promptly as possible. Officers did find several police scanners, bits of computer equipment, walkie-talkies, soldering irons and tools to take apart electronic equipment or jewelry, and pieces of disassembled jewelry.
        At one point during the search, appellant burst inside the apartment and greeted the woman, then ran away when he saw the uniformed police officers. Officers eventually found and arrested him in the backyard storage building of a home in the vicinity of his apartment. Appellant told an arresting officer that his car had overheated and that he had gone into the Rhues' fenced backyard for a water hose but could not find one. Channell testified, however, that appellant was parked in front of his neighbor's house where a working hose was and never tried to use it. Nor did he ask Channell if he could use his hose. The Rhues also had water faucets and hoses outside their house. Appellant did not approach them to ask for water when they saw him walking by their fence. In Channell's opinion, it did not appear that appellant was concerned about an overheated car when he hurriedly left the neighborhood.
 
Discussion
        In his first issue, appellant complains the trial court erred in allowing the State to admit into evidence testimony about the items found in his apartment that “were either burglary tools or equipment or impliedly burglary related” and about his flight from police. He first contends the evidence of the items found at his apartment constituted “extraneous offenses” and resulted in appellant being tried as a criminal generally rather than for the offense for which he was on trial. We review the trial court's decision to admit the evidence of an extraneous offense under an abuse of discretion standard. See Robbins v. State, 88 S.W.3d 256, 259-60 (Tex. Crim. App. 2002). If the trial court's decision was within the “bounds of reasonable disagreement,” we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).
        The testimony in appellant's case made clear that he did not possess any of the Rhues' belongings at his apartment. Nor did the State offer testimony showing that the items found in the apartment were stolen or used to extract value from stolen belongings. Appellant's possession of the unusual items - to the extent his possession of them constituted an “extraneous offense” - was relevant to his intent when he was discovered walking near the Rhues' home with a black bag; it cast doubt on his claim that Channell had made a mistake in identifying him as a burglar.   See Footnote 1  See Tex. R. Evid. 404(b). And the jury was instructed that if it heard any testimony about appellant committing extraneous offenses, it could not consider the testimony for any purpose unless it believed beyond a reasonable doubt that appellant had committed the offenses and could then consider the offenses only “in determining the intent, knowledge or lack of mistake of the defendant, if any, in connection with the offense . . alleged against him in the indictment in this case.” We conclude the trial court did not abuse its discretion in admitting the evidence.
        Appellant also complains the trial court erred in permitting testimony showing his flight from the officers when they were at his apartment to arrest him. He contends the evidence of his flight was irrelevant to the charged offense because it occurred more than three weeks after the burglary and in a different county. Evidence of flight is generally admissible as a circumstance from which an inference of guilt may be drawn. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994). The fact that the circumstances of the flight coincidentally implicate another crime does not render the evidence inadmissible. See Roberts v. State, 866 S.W.2d 773, 777 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd).
        To support the admission of evidence of flight, it must appear that the flight had some legal relevance to the offense under prosecution. Bigby, 892 S.W. at 883. In appellant's case, the evidence was relevant because appellant fled from his own apartment when he saw uniformed police officers there to arrest him. The State is generally entitled to put on evidence showing the circumstances of the defendant's arrest. See Cantrell v. State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987).
        To have the evidence excluded, the burden switched to appellant to affirmatively show that the flight was directly connected to some other transaction and that it was not connected with the burglary offense in this case. See Bigby 892 S.W.2d at 883. Appellant did not meet this burden. We conclude the trial court did not err in admitting this evidence. See Burks v. State, 227 S.W.3d 138, 148 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). We resolve appellant's first issue against him.
        In his second issue, appellant complains the evidence against him is legally and factually insufficient. He argues in particular that his statement to an arresting officer claiming he had been in the Rhues' backyard to get water for his overheated car should be disregarded because, several months after appellant made the statement, he was declared incompetent to stand trial.   See Footnote 2  Appellant asserts that without this statement, which was made when he may have been mentally unstable, the evidence against him is insufficient. The officer testified that appellant was sometimes hard to understand because he “just rambled sometimes.” Appellant's incompetency determination, however, was not admitted into evidence before the jury, so we may not consider it in assessing the sufficiency of the evidence.
        When reviewing challenges to the legal sufficiency of the evidence, we apply well- established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review 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). 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).
        In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the jury's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias. See id. In a factual sufficiency review, we may substitute our judgment for the jury's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
        Here, appellant was seen far from home on a Sunday morning, walking next to the Rhues' fence and carrying what appeared to be Rhue's laptop computer case. None of his observed behavior corresponded with his claim to police that he was actually seeking water for his overheated car. The jury, as judge of witness credibility in the case, could assess the fact that appellant rambled sometimes when he made this claim. And appellant's possession of police scanners and bits of jewelry and computers made his claim of innocent intentions less believable. Moreover, when he saw police at his apartment, he fled and hid from them. After reviewing all the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We resolve appellant's second issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070141F.U05
 
Footnote 1 After this testimony was admitted at trial, the State put on the additional evidence showing appellant claimed to police that he had been searching for water for his overheated car when he was seen near the Rhues' house. In addition, appellant's attorney argued in her opening statement to the jury that appellant had merely been looking for water at the time the Rhues' house was burglarized.
Footnote 2 Approximately three months after appellant was declared incompetent, a physician at the state hospital where he was treated determined he was competent to stand trial. He was tried approximately five months later.