Ronnie Pinkerton a/k/a Romero Pinkerton v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-06-00387-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RONNIE PINKERTON a/k/a APPEAL FROM THE SEVENTH

ROMEO PINKERTON,

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Ronnie Pinkerton appeals his conviction for burglary of a building, for which he was sentenced to imprisonment for twenty years. In one issue, Appellant challenges the legal and factual sufficiency of the evidence. We affirm.

Background

Appellant was charged by indictment with burglary of a building with intent to commit theft. The indictment also contained two enhancement paragraphs alleging previous felony convictions. Appellant pleaded not guilty, and the matter proceeded to trial before the court.

At trial, Tyler Police Department Officer Daniel Richardson testified first on the State s behalf. Richardson testified that on the night of July 30, 2005, he responded to a burglary call at a portable building at Griffin Elementary School in Smith County, Texas. Richardson further testified that as he approached one of the temporary buildings, he heard something moving inside, like somebody picked something up and put it down. Richardson later described what he heard as sounding like somebody was moving furniture or moving items. Richardson stated that as he walked around the building, he observed a busted out window. Richardson further stated that he heard his fellow officer, Officer Behrend, speak in an elevated voice, telling someone to [s]top. Richardson testified that he heard someone running toward the rear of the building. Richardson further testified that as he stood at the broken window at the rear of the building, the person attempted to exit through the broken window. Richardson stated that he told the person, Freeze, Tyler Police, but in response, the person backed away, and ran toward the front door. Richardson then described how after the person ran out the front door, he and Behrend gave chase for approximately one hundred yards before Behrend finally subdued the suspect with a taser. Richardson identified the person they apprehended that night as Appellant.

Behrend testified as the State s next witness. Behrend testified that he and Richardson arrived on the scene and approached the portable buildings at Griffin Elementary School. Behrend further testified that he and Richardson split up. Behrend stated that Richardson subsequently contacted him by radio informing him that he had discovered a broken window in one of the portable buildings and heard movement inside the building. Behrend further stated that he went to the building and provided cover at the door. Behrend stated that thereafter, Appellant emerged from the building through the door. Behrend further stated that with his weapon drawn, he instructed Appellant to stop and identified himself as a Tyler police officer. Behrend testified that Appellant retreated into the building and that shortly thereafter, he heard Richardson yelling to Appellant that he was with the Tyler Police Department and demanding to see Appellant s hands. Behrend stated that moments later, Appellant reemerged from the door and fled on foot. According to Behrend, he and Richardson pursued Appellant on foot and ultimately apprehended and subdued him with a taser. Behrend also testified that he went inside the building and observed computer related items that had been stacked up to the doorway. Behrend stated that some of the property in the building had been moved and staged near the front door. Behrend further stated that based on his training and experience, it appeared as if the property had been set up to be removed from the building.

Dr. Karen Raney testified as the State s next witness. Raney stated that she was the director of secondary education for the Tyler Independent School District. Raney testified that, in her capacity as director, she had a greater right of possession of the items than did Appellant. Raney further testified that she did not give Appellant consent to enter the building.

At the conclusion of Raney s testimony, the State rested. Appellant rested without calling witnesses. After the State and Appellant presented closing argument, the trial court found Appellant guilty as charged. Following a trial on punishment, the trial court sentenced Appellant to imprisonment for twenty years. This appeal followed.

Evidentiary Sufficiency

In his sole issue, Appellant argues that the evidence is legally and factually insufficient to support that he possessed the requisite intent to commit theft as charged in the indictment.

Legal Sufficiency

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41 42, 102 S. Ct. 2211, 2217 18, 72 L. Ed. 2d 652 (1982).

To support a conviction for burglary of a building, the evidence must support that the accused, without the effective consent of the owner, entered a building not then open to the public, with intent to commit a felony, theft, or an assault. See Tex. Penal Code Ann. 30.02(a)(1) (Vernon 2003). In the instant case, Appellant was charged with burglary of a building with intent to commit theft. Richardson testified that as he approached one of the temporary buildings, he heard something moving inside, like somebody picked something up and put it down. Richardson later described what he heard as sounding like somebody was moving furniture or moving items. Richardson stated that as he walked around the building, he observed a busted out window. Richardson further stated that he heard a fellow officer, Officer Behrend, speak in an elevated voice, telling someone to [s]top. Richardson testified that he heard someone running toward the rear of the building. Richardson further testified that as he stood at the broken window at the rear of the building, the person attempted to exit through the broken window. Richardson stated that he told the person, Freeze, Tyler Police, but in response, the person backed away, and ran toward the front door. Richardson then described how after the person ran out the front door, he and Behrend gave chase for approximately one hundred yards before Behrend finally apprehended the suspect and subdued him with a taser. Richardson identified that the person they apprehended that night as Appellant.

Behrend s testimony supports the account offered by Richardson. Behrend further testified that he saw Appellant emerge from the building through the door. Behrend stated that with his weapon drawn, he instructed Appellant to stop and identified himself as a Tyler police officer. Behrend testified that Appellant retreated into the building and shortly thereafter, reemerged from the door and fled on foot. Behrend also testified that he went inside the building and observed computer related items that had been stacked up to the doorway. Behrend stated that some of the property in the building had been moved and staged near the front door. Behrend further stated that based on his training and experience, it appeared as if the property had been set up to be removed from the building.

A person acts with intent when it is his conscious objective or desire to engage in the conduct or cause the result. See Tex. Penal Code Ann. 6.03(a) (Vernon 2003). Intent is most often proven through the circumstantial evidence surrounding the crime rather than through direct evidence. See McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989). Further, it is well settled that unlawful entry at night raises the presumption of intent to commit theft. See Martinez v. State, 469 S.W.2d 185, 186 (Tex. Crim. App. 1971). Intent to commit theft can also be inferred from, among other things, (1) placement of belongings of another inside a home near to where the appellant was finally stopped and (2) the appellant s attempt to flee when confronted. See, e.g., Henderson v. State, No. 12-05-00268-CR, 2006 WL 1791596, at *2 (Tex. App. Tyler June 30, 2006, no pet.) (mem. op., not designated for publication); see also Lozano v. State, No. 05-03-00608-CR, 2003 WL 22805272, at *2 (Tex. App. Dallas Nov. 26, 2003, pet. ref d) (not designated for publication) (evidence was legally and factually sufficient to show that defendant had intent to commit theft when the evidence showed that he entered the victim s apartment without permission at 3:00 a.m. while victim was asleep and victim testified that defendant moved a nail compressor in apartment); see also Weatherspoon v. State, No. 01-02-00932-CR, 2003 WL 22682132, at *3 (Tex. App. Houston [1st Dist.] Nov. 13, 2003, no pet.) (mem. op., not designated for publication) (evidence was factually sufficient to support conviction for burglary where evidence indicated that defendant started to flee when officers arrived at the victim s home, officer was able to see defendant clearly when defendant ran under a porch light, and officers noticed that defendant had removed frozen meat from a freezer in victim's garage and left the meat on garage floor).

Examining the aforementioned evidence in the light most favorable to the verdict, we conclude that the trial court could have determined beyond a reasonable doubt that Appellant entered the building in question with the intent to commit theft. The evidence reflects that items inside the buildings were moved around and placed near the door from which Appellant later emerged and attempted to flee on foot. Therefore, we hold that the evidence was legally sufficient to support the trial court s judgment.

Factual Sufficiency

Turning to Appellant s contention that the evidence is not factually sufficient to support the jury s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the trial court that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the trial court s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the trial court s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the trial court s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the trial court s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the verdict).

We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the trial court s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the trial court s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the trial court s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the trial court s judgment. Appellant s sole issue is overruled.

Disposition

Having overruled Appellant s sole issue, we affirm the trial court s judgment.

BRIAN HOYLE

Justice

Opinion delivered September 26, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)