Melissa Novak v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-07-00321-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MELISSA NOVAK, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Melissa Novak appeals her conviction for burglary of a building, for which she was sentenced to confinement for two years. In one issue, Appellant argues that the evidence was factually insufficient to support the trial court s judgment. We affirm.

Background

Appellant was charged by indictment with burglary of a building. // Appellant pleaded not guilty, and the matter proceeded to a bench trial.

At trial, Smith County Sheriff s Deputy Chris Hudson testified as the State s first witness. Hudson testified that on November 19, 2006, while he was driving by the Pine Haven storage facility as part of his patrol, he noticed the gates to the facility were open and that a white van was parked among the storage units near the rear of the property. Hudson stated that he drove his vehicle to the back of the property where he observed two persons carrying items out of one of the storage units. // Hudson further stated that he detained the two subjects, who were later identified to be Appellant and her husband. Hudson testified that he looked inside Appellant s vehicle and observed boxes and bags containing various clothing and craft items. Hudson further testified that as he examined the storage unit, he noticed that the lock to the unit had been cut and was lying on the ground. However, Hudson noted that he did not locate any device that could have been used to cut the lock. Hudson stated that he contacted the manager of the storage facility, who came to the scene. According to Hudson, Janet Kugle-Jensen subsequently arrived at the storage facility and identified the property in Appellant s vehicle as her own. Finally, Hudson testified that the unit he observed Appellant exiting while carrying items was unit D-17, which was the same unit that was rented to Kugle-Jensen.

Kugle-Jensen testified as the State s next witness. Kugle-Jensen stated that she rented a storage unit at Pine Haven. Kugle-Jensen further stated that she kept the unit locked and never gave anyone permission to enter it. After reviewing exhibits provided by the State, Kugle-Jensen testified that the unit depicted in a number of the exhibits was rented to her. Kugle-Jensen further identified a cut storage lock pictured in an exhibit as property belonging to her. Finally, Kugle-Jensen testified that she identified the property found in Appellant s vehicle as her property. Following Kugle-Jensen s testimony, the State rested.

Appellant testified on her own behalf. Appellant stated that she had previously obtained permission from Pine Haven to look for trash, junk, and abandoned property. // Appellant further stated that she and her family often look for junk so that they can later sell it at a flea market. Appellant testified that neither she nor anyone who was with her that evening cut or damaged any lock on the property. Appellant further testified that she went to the property on the night in question to pick up discarded or abandoned property, but did not intend to steal or wrongfully appropriate anything.

Following Appellant s testimony, the defense rested. // The trial court found Appellant guilty as charged and ultimately sentenced her to confinement for two years. This appeal followed.

Factual Sufficiency

In her sole issue, Appellant contends that the evidence is factually insufficient to support the trial court s judgment of conviction. When an appellant raises a contention that the evidence is not factually sufficient to support the trial court s judgment, 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 fact finder 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 fact finder 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 fact finder 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 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 fact finder 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).

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 theft or entered a building and committed or attempted to commit a theft. See Tex. Penal Code Ann. 30.02(a)(1). //

In the instant case, the record reflects that Hudson observed Appellant exiting a storage unit, which was rented by Kugle-Jensen. // Hudson testified that as he examined the storage unit, he noticed that the lock to the unit had been cut and was lying on the ground. Hudson further testified that he looked inside Appellant s vehicle and observed boxes and bags containing various clothing and craft items. Kugle-Jensen stated that the property found in Appellant s vehicle as well as the cut storage lock belonged to her. Kugle-Jensen further stated that she kept the unit locked and never gave anyone permission to enter it.

Having reviewed the record in its entirety, we iterate that our evaluation should not substantially intrude upon the fact finder 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 verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. It follows that the trial court was entitled to find Hudson s and Kugle-Jensen s testimony was more credible or weighed more heavily toward a finding of guilty than the testimony offered by Appellant that she went to the property on the night in question to pick up discarded or abandoned property, but did not steal or wrongfully appropriate anything. See Thompson v. State, 54 S.W.3d 88, 97 (Tex. App. Tyler 2001, pet. ref d). 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.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 7, 2008.

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

(DO NOT PUBLISH)