Jerry Warren v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2000
• Docket: 13-99-00325-CR
• Status: Published

Opinion

NUMBER 13-99-325-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JERRY WARREN,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of Victoria County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden, and Justices Dorsey and Yañez

Opinion by Justice Yañez

Appellant, Jerry Warren, was indicted for the offense of burglary of a habitation.⁽¹⁾ The indictment also alleged a prior felony conviction for enhancement purposes. A jury found appellant guilty, found the enhancement allegation true, and assessed punishment at sixteen years imprisonment in the Institutional Division of the Texas Department of Corrections, and a $1000 fine. By a single point of error, appellant asserts the evidence is insufficient to support his conviction because there is no evidence to show he perpetrated the offense.

Facts

On August 27, 1998, at 3:30 p.m., Renata Barfield left her home in Victoria, Texas, to pick up her child at school. At the time of the burglary, she had lived with Clarence Terrell and their child at the home for about two years. Barfield owned a Fisher stereo, which she was purchasing from Advantage Rent To Own ("Advantage"). The serial number of the stereo was etched on the back of the unit. When Barfield left at 3:30, the stereo was in the house. Clarence Terrell came home shortly after 4:15 p.m. and began to shower. Barfield returned home about 5:00 p.m. and noticed that the stereo was missing. The house had been locked, but the window over the kitchen sink was left ajar due to air conditioning difficulties. At 4:30 p.m., a boot print was seen on the kitchen floor and the kitchen window was wide open. Footprints were seen outside the house under the kitchen window. A light blue ball cap inscribed with dogs and the message, "If you can't run with the big dogs, stay on the porch," was found in the kitchen sink. The cap did not belong to Terrell, Barfield or their child. A cap of this type had been seen on appellant. At trial, appellant's girlfriend, Yvonne Richardson, testified that appellant had a ball cap similar to the cap found at the scene. The police were called shortly after the discovery of the burglary. Barfield called Advantage and obtained the serial number of the stereo. She called several pawn shops and discovered appellant had presented the stolen stereo to Doc Holliday's and had obtained a $35.00 loan from the clerk, Dennis Blayloch. Blayloch testified appellant had pawned the stereo at 4:55 p.m. on August 27, 1998, according to the pawn ticket. Appellant had shown his Texas driver's license to the clerk. Appellant later admitted in a written statement to the police that he pawned the stereo at Barfield's request. Barfield denied giving appellant consent to take and pawn the stereo. All witnesses, including Blayloch, identified appellant in court.

Analysis

By a single point of error, appellant asserts the evidence is insufficient to support his conviction because there is no evidence to show he entered the habitation to steal the stereo.

The United States Supreme Court set the standard for reviewing legal sufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307 (1979); Dewberry v. State, 4 S.W.3rd 735, 740 (Tex. Crim. App. 1999). In reviewing a legal sufficiency question, we must 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 crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim. App. 1989) (reaffirming Jackson standard of review). This Court must evaluate all of the evidence, both direct and circumstantial, whether admissible or inadmissible. Dewberry, 4 S.W.3d at 740; see Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim. App. 1998). When reviewing the evidence, our role is not to become a thirteenth juror. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder. Dewberry, 4 S.W.3d at 740. Whether the evidence fails to exclude every outstanding reasonable hypothesis other than guilt is not a measure of the legal sufficiency of the evidence. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991) (rejecting the reasonable hypothesis construct as a measure of legal sufficiency).

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Mosley, 983 S.W.2d at 254; Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Reconciliation of conflicts in the evidence is also within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).

As the State points out, the evidence in this case establishes: (1) the stereo, matched by serial number, was stolen from the habitation; (2) a hat similar to appellant's was found in the sink at the site of entry, the kitchen window; and (3) appellant admitted he pawned the stereo.

We therefore hold that the evidence is sufficient to show appellant committed the offense of burglary of a habitation. We overrule appellant's sole point of error.

We AFFIRM the judgment of the trial court.

_______________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 31st day of August, 2000.

1. See Tex. Pen. Code Ann. § 30.02(a)(1), (c)(2) (Vernon Supp. 2000).