David Allen Owens v. State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-01-059-CR

DAVID ALLEN OWENS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 9445-A

O P I N I O N

Owens appeals from a conviction of burglary enhanced by two prior felonies. The sole issue Owens raises is whether the evidence is legally sufficient to prove ownership of the burglarized building. We overrule the issue and affirm the judgment.

(citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

The elements of burglary are: (1) a person, (2) without the effective consent of the owner, (3) enters a building not then open to the public, (4) with the intent to commit a felony or theft. SeeTex. Pen. Code Ann. 30.02(a)(1) (Vernon 1994); Robertson v. State, 21 S.W.3d 554, 557 (Tex. App. Waco 2000, pet. ref d). An owner is someone who has title to property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Tex. Pen. Code Ann. 1.07(a)(35)(A) (Vernon 1994). In order to establish ownership by greater right to possession in a burglary case involving a commercial building, the prosecution need only prove that the complaining witness is an employee of the commercial enterprise whose building was burglarized. See Sherlock v. State, 632 S.W.2d 604, 608 (Tex. Crim. App. [Panel Op.] 1982).

The State alleged in the indictment that Walpole is the owner of the burglarized building. The evidence sufficiently establishes that Boyd Walpole is an employee in the capacity of maintenance supervisor at Southern Traditions Furniture. Further, Walpole is the representative of the business who received the initial phone call that a break-in had occurred. Other testimony on the record by the investigating police officers establishes that Walpole has keys to the building and the authority to handle late night investigations for break-ins. This is sufficient to establish that Walpole has greater right to possession than Owens. We hold that the evidence is legally sufficient to establish the element of owner.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed.

Opinion delivered and filed October 30, 2002

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