Mark Anthony Loewe v. The State of Texas--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

No. 10-90-204-CR

MARK ANTHONY LOEWE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 6476

O P I N I O N

Appellant brings a sufficiency-of-the-evidence point challenging his conviction of burglary of a building, enhanced, for which he was assessed life imprisonment and a $10,000 fine. See Tex. Penal Code Ann. 30.02 (Vernon 1989). We will overrule Appellant's point.

Around 3:00 a.m. on a spring morning in 1990, Hamilton County Sheriff's deputies were conducting a routine security check of Ken's Pawn Shop when they noticed a security door standing open. Upon investigation, they found evidence of an illegal entry into the pawn shop: sheet metal pried apart at the rear of the building, a broken glass panel in the door at the front of the building, broken door locks and hasps, and a broken window. One of the deputies observed a male with collar-length hair inside the building. After this observation, the deputies called for "back-up" help. When the "back-up" officer arrived, he stated to the deputies that he had seen an individual of "medium build" with "long hair" running behind the building, heading toward a cemetery. The officers found guns lying on the floor of the building, and they found rifles, shotguns, a toolbox, and jewelry piled outside the building near the property's fence line. They also discovered footprints on a concrete floor inside the back of the building and a screwdriver's wooden handle outside of the building near the pried-open sheet metal. Marks on the sheet metal surrounding the point of entry appeared to have been made by a screwdriver blade.

Later that morning, after Appellant consented to a search of his car, officers found a pair of gloves and a toolbox in the trunk. Screwdrivers in the toolbox had the same type of wooden handles as the screwdriver handle found at the scene of the crime. The name "T. Lowe" was printed on the toolbox. At the time of the search of the car, photographs were taken of footprints in the soft dirt around the car.

Officers also obtained consent from Alton Boren, father of Appellant's girl friend, to search his home. Boren advised the officers that Appellant was the only person who had been living in one of the bedrooms for the last three months. Boren testified that he never went back into that bedroom. Boren did not remember Appellant being in his home when Boren went to bed the night before the burglary, but Appellant was there when Boren woke up at 7:00 a.m. Officers found the shaft of a long screwdriver, without a handle, scratched with the initials, "A B," under the mattress in the bedroom where Appellant slept. They also discovered a pair of Nike tennis shoes. The screwdriver shaft fit the broken, wooden screwdriver handle found at the scene of the crime. One of the officers testified that the photographs taken of footprints around the car were "consistent with" photographs of footprints found inside the burglarized building. He also examined the tennis shoes in front of the jury, pointed out that the left shoe had a missing cleat, and said that the shoe appeared to be the one which left the footprint shown in the photographs taken around Appellant's car.

The owner of the shop testified that Appellant had been in the shop "just shortly prior to" the burglary and that during that visit, Appellant "walked around," looking at the merchandise.

Beverly Beeman, Appellant's girl friend, testified that when she visited Appellant in jail later on the day of the burglary he asked her to go to her father's house and get a tool from under the mattress and a pair of shoes and give them to his mother. This conversation was overheard by jail authorities.

The standard for review for challenges to sufficiency claims is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (opinion on rehearing). An identical standard is applied to sufficiency challenges involving circumstantial evidence cases. Carlsen, 654 S.W.2d at 449. In applying this standard, if the reviewing court finds that there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that the guilt has been shown beyond a reasonable doubt. Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991); Johnson v. State, 673 S.W.2d 190, 195 (Tex. Crim. App. 1984).

Appellant offers alternate hypotheses that either Beeman or her father, Boren, committed the burglary. We do not believe these to be reasonable. One of the officers' descriptions of the person seen in the building at the time of the offense was that "it was a male [with] about collar length hair." (Emphasis added). Additionally, Beeman testified that she was working at the Hillcrest Nursing Home during the early morning hours of the day of the burglary. This evidence, coupled with the evidence pointing to Appellant, excludes, as a reasonable hypothesis, the possibility of Beeman committing the burglary.

The possibility that Boren committed the burglary is excluded as a reasonable hypothesis as well. Even though Boren's initials were scratched into the screwdriver blade, the blade was found under the mattress where Appellant slept, and the handles on the tools found in Appellant's car were of the same type as the one found at the crime scene. The footprints, Appellant's conversation with Beeman at the jail, and Appellant's visit to the store when it was open reinforce the jury's conclusion.

Viewing the evidence in the light most favorable to the judgment, we believe that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89, 61 L. Ed. 2d 560; Butler, 769 S.W.2d at 239; Tex. Penal Code Ann. 30.02 (Vernon 1989). We overrule Appellant's point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed October 16, 1991

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