Robert A. Rodriguez v. The State of Texas--Appeal from 331st District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-116-CR
ROBERT A. RODRIGUEZ,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 100,646, HONORABLE BOB PERKINS, JUDGE

Following a joint trial, a jury found appellant and his co-defendant, Mauro Martinez, guilty of burglary of a habitation. The court assessed appellant's punishment at imprisonment for seventeen years.

In two points of error, appellant urges that the district court erred by admitting evidence of an extraneous offense and that the evidence is legally insufficient to sustain the conviction. We will affirm.

The Austin residence of James and Diana Gatzmeyer was burglarized on November 1, 1989. A large quantity of personal property was stolen, including cash, video equipment, rifles and shotguns, jewelry, silver, and clothing. That same night and approximately one mile away, the James and Wilma Sandberg residence also was burglarized. In addition to personal property of the type stolen in the Gatzmeyer burglary, the intruder took a safe weighing approximately 260 pounds from the Sandbergs.

On December 4, 1989, a man named Chris Arnette contacted Austin police officer Don Mayes and told him that property taken in these two burglaries could be found in a San Antonio apartment. Based on this tip and information gathered during a subsequent investigation, San Antonio police obtained a warrant to search this apartment, which they executed on December 7. The property seized during this search included between 75 and 150 items identified by the Gatzmeyers and Sandbergs as having been stolen during the burglaries of their homes. Some of the stolen items were in pillow cases identified as taken in the two burglaries and apparently used to carry the stolen goods.

The San Antonio apartment was rented by Mauro Martinez and occupied by Martinez and appellant. There is evidence that a third man, Richard Guerra, may also have lived there. Much of the stolen property was found in the bedroom of the apartment, the door of which was secured by a deadbolt lock. Appellant had the key to this lock.

The indictment in this cause was based on the Gatzmeyer burglary. In one point of error, appellant contends the evidence is legally insufficient to sustain his conviction for this offense. In his other point of error, appellant argues that the district court erred by admitting evidence of the Sandberg burglary "because no proof existed that appellant committed the extraneous offense." The court admitted the extraneous-offense evidence for the purpose of showing identity, intent, and common plan, and so instructed the jury. See Tex. R. Crim. Evid. Ann. 404(b) (Pamph. 1992). (1) Of course, the evidence was relevant only if it was shown that appellant was the perpetrator. Elkins v. State, 647 S.W.2d 663, 665 n.3 (Tex. Crim. App. 1983). Because the two points of error are interrelated, we will consider them together.

The Gatzmeyer and Sandberg burglaries occurred on the same night, a short distance from each other. One month later, a large amount of the property taken from each house was found in an apartment occupied by appellant. Although appellant was not the only occupant of the apartment, much of the stolen property was found in a locked bedroom to which only appellant was shown to have a key. The only evidence that anyone else had access to this room was Martinez's wallet, which was found in the bedroom closet.

In a prosecution for burglary, guilt may be inferred from evidence of the burglary together with the defendant's possession of the stolen property. Hardage v. State, 552 S.W.2d 837, 839 (Tex. Crim. App. 1977); England v. State, 727 S.W.2d 810, 811 (Tex. App. 1987, no pet.). To support such an inference, however, the defendant's possession must be personal, recent, unexplained, and must involve a distinct and conscious assertion of right to the stolen property. England, 727 S.W.2d at 811. Appellant argues that none of these criteria is present in this cause, either as to the property stolen in the primary burglary or as to that taken in the extraneous offense.

Appellant argues that his possession of the stolen property was not personal because two other men shared the apartment in which it was found. But most of the stolen property was found in a locked room to which appellant had the only key shown by this record to exist. This evidence demonstrates both appellant's personal possession of the stolen property and his distinct and conscious assertion of a right to the property, and is inconsistent with a claim that Martinez and Guerra had an equal right and facility of access to the stolen goods. See Id. at 811.

A defendant's possession of stolen property need not be exclusive in order to be personal. For example, the evidence may demonstrate a joint enterprise or conspiracy between the accused and others with access to the property. Id. at 812. Given the amount of property stolen during the two burglaries and the weight of the safe taken from the Sandberg residence, it is unlikely that one person alone committed the offenses. To the extent that the evidence suggests that Martinez and Guerra also had possession of the stolen property, it does not, under the circumstances, negate appellant's culpability for the crimes.

Appellant argues that his possession of the stolen property was not recent because the search of his apartment took place over a month after the burglaries. Whether the property was so recently stolen as to support an inference of guilt is a question to be determined by the circumstances of each case. Hardage, 552 S.W.2d at 840. If appellant had been shown to be in possession of only a few items of easily transferred property, his argument would have some merit. But the evidence shows that appellant was in possession of scores of items stolen from the Gatzmeyers and the Sandbergs. Some of this property was still in the pillow cases in which it presumably was taken. We find the evidence sufficient to render it reasonably certain that there was no intermediate change of possession.

Finally, appellant argues that his possession of the stolen property was not unexplained. In his brief, appellant refers us to defense counsel's cross-examination of a San Antonio police officer, during which the officer indicated that Martinez told him on the day he was arrested that the stolen goods were brought to the apartment by Chris Arnette (the informer). During the State's redirect questioning of this officer, however, he reexamined his offense report and testified that Martinez told him that appellant brought the stolen property to the apartment. Thus, Martinez's explanation for how the stolen property came to be in the apartment did not exculpate appellant.

We find that the circumstantial evidence in this cause, when viewed in the light most favorable to the conviction, does not support any reasonable hypothesis inconsistent with appellant's guilt, and that the evidence is sufficient to support the jury's finding of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). We also find that the evidence is sufficient to demonstrate appellant's guilt of the extraneous burglary and overrule appellant's point of error complaining of the introduction of the extraneous offense on this basis. (2)

The judgment of conviction is affirmed.

 

Marilyn Aboussie, Justice

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Affirmed

Filed: August 12, 1992

[Do Not Publish]

1. Appellant does not challenge the stated bases for the trial court's admission of the extraneous-offense evidence.

2. In this same point of error, appellant briefly asserts that the probative value of the extraneous offense was outweighed by the danger of unfair prejudice. Tex. R. Crim. Evid. Ann. 403 (Pamph. 1992). We do not address this contention as it was not preserved by trial objection. Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex. Crim. App. 1991) (opinion on rehearing).