Garza v. State

841 S.W.2d 19, 1992 Tex. App. LEXIS 2692, 1992 WL 315722
Court of Appeals of Texas·Decided August 25, 1992·No. 05-90-01170-CR·Published·Cited by 38 cases

Opinions

OPINION

WIGGINS, Justice.

Adan Cavazos Garza appeals his conviction for the offense of burglary of a building. The trial court found him guilty and assessed punishment at ten years’ confinement, probated for ten years. On appeal, Mr. Garza contends (1) the evidence is insufficient to support his conviction and (2) the trial court abused its discretion in ordering $1250 in restitution as a condition of probation. We sustain Mr. Garza’s second point of error, reverse the trial court’s judgment, and remand the cause for a new trial on punishment.

BACKGROUND

On September 30, 1988, Frank Reyna observed Mr. Garza on the premises of the B & B Sign Company. Mr. Reyna testified that he saw Mr. Garza exiting the rear of the building carrying an aluminum stepladder. He stated that he did not see Mr. Garza in the building, but noticed him in the fenced area at the rear of the building. Mr. Reyna said, “But [sic] the back of the building there’s a little door at the back, exit door at the back of the building where he had just — the only place he could have came [sic] from with that ladder being that long.” Mr. Reyna saw Mr. Garza carrying one ladder through a hole in the fence towards another ladder that was on the grass approximately fifty yards away. When Mr. Garza saw Mr. Reyna watching him, Mr. Garza put the ladder down and pretended to walk away. Mr. Reyna left the scene and called the police.

Officer Victor Woodberry testified that Mr. Reyna flagged him down and said he had seen some people carrying some “stuff” that he thought did not belong to them. Officer Woodberry stated that he knew people were selling aluminum in the area and that the police had received complaints. Officer Woodberry observed Mr. Garza and another man, Jessie Connor, carrying a ladder. He approached the men and asked them if they owned the ladder. The men told him they had found it in the [21] grass. He saw another ladder that had been beaten up and dismantled.

The owner of B & B Sign Company, Jeffrey Wells, testified that, on the following Monday, he discovered the building had been burglarized. He noticed that two ladders, an extension ladder and an aluminum stepladder, had been stolen. He testified that the ladders were kept inside the building and had been taken from inside the building. He noticed damage to the rear of the building where someone had disassembled the sheet metal and broken a window. He also testified that someone had cut a hole, large enough for a man to crawl through, in the fence and had broken the tree branches in order to crawl through the window. He stated that he had seen Mr. Garza in the vicinity prior to this occurrence. Mr. Wells stated that his total loss for the ladders and the cost of repairs was $1240 and that he had recovered the stepladder.

Mr. Garza testified that he was operating a business, buying aluminum cans and copper, on September 30. He said that Mr. Connor brought him the ladders, already dismantled, that day. He denied entering the B & B building. He stated that he did not know the ladders were stolen and did not know where they came from. He also testified that he had already placed the dismantled ladder on the scale when the police arrived.

Police Officer Bill Sanders testified that the probable-cause affidavit stated that Mr. Reyna observed Mr. Connor carrying the ladder by himself. On the other hand, he also stated that Mr. Reyna pointed to Mr. Garza and told the officers that Mr. Garza was the man carrying the ladder.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, Mr. Garza contends that the evidence is insufficient to sustain the conviction because it fails to prove he entered the building. The standard of review for challenges to sufficiency claims is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim. App.), cert. denied, — U.S.—, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991). This is true in both circumstantial and direct evidence cases. Marroquin v. State, 746 S.W.2d 747, 750 (Tex.Crim.App.1988).1 In applying this standard, if we find there is a reasonable hypothesis other than the guilt of the accused, then we cannot say that the guilt has been shown beyond a reasonable doubt. Turner, 805 S.W.2d at 427. Proof that amounts only to a strong suspicion or mere probability is insufficient. McCarron v. State, 605 S.W.2d 589, 593 (Tex.Crim.App. [Panel Op.] 1980). However, every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Id. If the combined and cumulative force of all the incriminating circumstances warrant a conclusion of guilt, the evidence is sufficient. Brandley v. State, 691 S.W.2d 699, 703 (Tex.Crim.App.1985).

The judge, as trier of fact, is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness’s testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). The appellate court does not resolve any conflict of fact, weigh the evidence, or evaluate the credibility of the witnesses. See, e.g., Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984).

The elements of proof for burglary of a building with the intent to commit theft are that (1) a person, (2) without effective consent, (3) enters a building not then open to the public, (4) with the intent to commit a felony or theft. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 1989); Johnson v. State, 665 S.W.2d 554, 556 (Tex. [22] App. — Houston [1st Dist.] 1984, no pet.). A burglarious entry may be shown by circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex.Crim.App. [Panel Op.] 1978).

With regard to Mr. Garza’s contention that the evidence is insufficient to prove that he “entered” the building, we note the following evidence was offered at trial. Mr. Wells, the owner of the burglarized building, testified that the ladders were taken from inside the building. He also testified that there was evidence of damage and forced entry into the building. Mr. Reyna saw Mr. Garza exiting the building with the stolen ladder. The police officers saw Mr. Garza and Mr. Connor in possession of the stolen property. Thus, there was evidence that a building had been burglarized and that Mr. Garza was in possession of the stolen items.

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Garza v. State, 841 S.W.2d 19, 1992 Tex. App. LEXIS 2692, 1992 WL 315722 (Tex. Ct. App. 1992).

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