James Ray Coleman v. The State of Texas--Appeal from 185th District Court of Harris County

NO. 10-89-118-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JAMES RAY COLEMAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 185th Judicial District Court

Harris County, Texas

Trial Court # 520,072

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O P I N I O N

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A jury convicted Appellant of burglary and the trial court assessed his punishment at thirty-five years in prison. See Tex. Penal Code Ann. 30.02 (Vernon 1989). Appellant complains in five points of error that (1) the evidence was legally and factually insufficient to support the jury's verdict, (2) the proof of the prior convictions used for enhancement purposes failed, and (3) he was denied effective assistance of counsel. We affirm the judgment.

After receiving a call from the security office at 5:30 a.m. advising him that his Radio Shack store had been broken into, the manager went to the store. He said that entry was gained by breaking the front glass. Around 5:30 a.m. on that same day, Officer Petty stopped a speeding vehicle three blocks from the Radio Shack. The car was driven by Charles Brown, and Appellant was in the front passenger seat. Petty found two video recorders and two tape decks in the rear seat area, more equipment than one person could carry. Having heard a radio report of a "burglary in progress" at the Radio Shack, he placed Appellant and Brown under arrest. Petty then went to the Radio Shack where the manager verified by the serial numbers that the electronic equipment in the vehicle had been taken from his store. The officer found a tire tool with glass particles on it under the seat where Appellant was sitting, and the front of the store "had numerous marks of [the] tire tool on it, where entry was made on the door part." When an officer asked for his name after the arrest, Appellant said, "James Ray or Roy James Lee."

Appellant contends that the evidence was legally insufficient to support his conviction because it failed to establish that he was criminally responsible for the offense. A permissible inference of guilt of burglary or theft arises if a defendant is found in possession of recently stolen property and at the time of his arrest fails to make a reasonable explanation showing his honest acquistion of the property. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983); Rodriguez v. State, 549 S.W.2d 747, 749 (Tex. Crim. App. 1977). This inference does not arise, however, unless the possession is personal, recent, and unexplained and involves a distinct and conscious assertion by the defendant of a right to the property. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). Once the inference arises, sufficiency of the evidence must still be examined according to applicable evidentiary standards of appellate review because the inference is not conclusive. Hardesty, 656 S.W.2d at 77.

Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant's guilt. Johnson v. State, 673 S.W.2d 190, 195 (Tex. Crim. App. 1984). Every circumstantial evidence case must be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Id.

The court charged the jury on the elements necessary to the offense of burglary and on the law of parties. The jury could have considered the following: Appellant and one other person were riding in a car containing more stolen property than one person could carry; Appellant was apprehended minutes after the burglary occurred, three blocks from the site of the burglary; the tire tool with glass particles clinging to it was found under the seat where Appellant was sitting; Appellant gave no explanation when confronted by Officer Petty as to how he or the stolen property came to be in an automobile fleeing from the scene; and Appellant gave the officer a false name in an attempt to hide his true identity. Thus, we can conclude that under the circumstances of the present case the jury could and did find the essential elements of the crime beyond a reasonable doubt and that Appellant, according to a common purpose, acted with Brown as a party to the offense. See Phelps v. State, 730 S.W.2d 198, 200 (Tex. App.--San Antonio 1987, no pet.).

Based on the testimony and the record as a whole, we find that the jury could have determined beyond a reasonable doubt that Appellant was guilty of the crime charged. See id. Furthermore, the record as a whole excludes every other reasonable hypothesis except Appellant's guilt. See id. We overrule point one.

Appellant contends that the evidence was factually insufficient to support his conviction because the greater weight and preponderance of the evidence does not support the jury's verdict, citing Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990). Because we understand the Meraz standard of review to apply only when courts of appeals are called upon to exercise their fact-finding authority to determine whether the defendant proved an affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of the evidence, we overrule point five. See id. at 152-56; Hawkins v. State, 793 S.W.2d 291, 293 n.2 (Tex. App.--Dallas 1990, pet. ref'd).

Officer Pruett testified, without objection, that after the arrest Appellant gave him a false name. Appellant claims in point four that he was denied the effective assistance of counsel when trial counsel failed to object to the admission of this verbal statement. To prevail on this point, Appellant must meet the two-prong test used to analyze claims of ineffective assistance of counsel. See Cooke v. State, 735 S.W.2d 928, 929 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). First, he must show that the attorney's performance was so deficient that he was not functioning as "counsel" guaranteed by the Sixth Amendment. See id. Second, he must demonstrate that the deficient performance so prejudiced his defense that he was deprived of a fair trial, i.e., that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. See id.

Based on a review of the entire record--including other objections made by Appellant's trial counsel, rulings by the court on those objections, and the cross-examination of the officer--we do not believe that Appellant has demonstrated that this isolated failure to object to evidence rendered counsel ineffective. See id.; Archie v. State, 615 S.W.2d 762, 765 (Tex. Crim. App. [Panel Op.] 1981). We overrule point four.

Finally, Appellant complains of the authentication of two "pen packets" used to prove the enhancement paragraphs in the indictment. Each exemplification contained a certification of the authority of Frank J. Robinson, the judge of the county court of Walker County, made by James D. Patton, the clerk of the county court of Walker County, Texas, "By: Fran Kiser Deputy." Appellant contends that the records do not reflect the authority of the person signing the certificates to execute them in any specific official capacity because her signature could reflect "Fran Kiser Deputy" with "Deputy" being her last name.

While the form of these certificates may not be perfect, they are sufficient to authenticate the documents in question because a reasonable construction of each demonstrates that Fran Kiser is a deputy of James D. Patton, the clerk of the county court of Walker County. See Tex. Loc. Gov't Code Ann. 82.005 (Vernon 1988); Tex. Gov't Code Ann. 26.005 (Vernon 1988). We hold that the exhibits were properly authenticated and overrule points two and three.

We affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings

and Justice Vance

Affirmed

Opinion delivered and filed April 30, 1991

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