Garry Lee, Jr. v. State
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Opinion
This is an appeal from a conviction by a jury for the felony offense of burglary of a habitation. Appellant pleaded true to enhancement allegations and was assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of forty-five years. Appellant was also assessed a fine in the amount of $5,000. Three issues are raised on appeal. Appellant attacks the legal and factual sufficiency of the evidence to support his conviction, and also complains of a ruling by the trial court during the course of an objection under Tex. R. Evid. 403.
Under both his legal and factual insufficiency issues, appellant asserts the State failed to prove his identity as the perpetrator of the burglary, and failed to prove appellant's "intent" to commit the underlying felony of aggravated assault. During its case-in-chief, the State called the complainant, S.B., who positively identified appellant as the man she saw inside her home on the day in question, and further testified that appellant pointed a silver revolver directly at her and her son. S.B. further testified that when she saw the revolver she "was just in complete terror," and "felt very threatened." The State additionally presented the testimony of S.B.'s neighbor, T.K., who also observed appellant on the same day of the burglary when he rang T.K.'s doorbell inquiring about lawn maintenance. T.K. was unequivocal in her identification of appellant as the man she observed at her home near the time of the burglary. Both S.B. and T.K. testified about a distinct physical feature possessed by appellant that aided them in identifying him as the perpetrator: he had very bad teeth.
Appellant took the witness stand in his defense and denied being the burglar identified by S.B.; he presented testimony of his whereabouts on the day in question. During the course of his testimony, appellant was impeached with a number of prior felony convictions, including aggravated robbery, aggravated sexual assault, and burglary of a habitation. Appellant also admitted lying to the police when being questioned about his connection to a handgun similar to the one described by S.B. as the weapon appellant pointed at her.
In reviewing a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). As factfinder, the jury may accept or reject any or all evidence. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). That the defendant presents a different factual version does not render the evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872-873 (Tex. Crim. App. 1985); Thompson v. State, 12 S.W.3d 915, 920 (Tex. App.--Beaumont 2000, pet. ref'd.). When reviewing the factual sufficiency of the evidence, we must decide whether a neutral review of all the evidence, both for and against the jury's verdict, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the factfinder's determination. And we consider whether 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). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404; 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
The evidence is both legally and factually sufficient to prove appellant's identity as the perpetrator of the burglary on the day in question. He was positively identified. Appellant provided a description of his actions and whereabouts on the day of the burglary, and he named several individuals he had contact with on the day in question. But he produced no corroborating evidence from any source. Furthermore, the evidence of appellant's prior convictions, as well as his having lied to police, effectively impeached his testimony, permitting any rational trier of fact to reject his alibi.
We reject appellant's argument that there is no evidence of his "intent" to "threaten" S.B. with imminent bodily injury. "Intent" is a fact issue which is usually established by circumstantial evidence and inferred from the acts, words, and conduct of the accused. See Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998); (mental culpability usually inferred from circumstances surrounding an act); Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982) (intent inferred from accused's acts, words, conduct). The act of openly brandishing a weapon in the presence of S.B. was clearly sufficient proof of appellant's intent to "threaten" S.B. with imminent bodily injury. The evidence strongly indicated that appellant knew of S.B.'s presence, as S.B. testified she was screaming to her husband on the telephone that someone was in her house. Indeed, S.B. stated that appellant was a mere three feet from her son when she screamed, "He's got a gun." The record contains legally and factually sufficient proof of appellant's "intent" to threaten S.B. After reviewing all the evidence, we conclude that there is both legally and factually sufficient evidence to sustain the verdict. Issues one and two are overruled.
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Garry Lee, Jr. v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garry-lee-jr-v-state-texapp-2003.