NUMBER 13-10-00302-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG ____________________________________________________
JOSE GUTIERREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas ____________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes Memorandum Opinion by Justice Perkes
A jury convicted appellant, Jose Gutierrez, of the offense of burglary of a habitation.
See TEX. PENAL CODE § 30.02 (West 2003). The trial court assessed punishment at five
years confinement in the Institutional Division of the Texas Department of Criminal Justice.
In a single issue, Gutierrez contends the evidence is legally insufficient to establish that he
committed the offense of burglary of a habitation. We affirm. I. BACKGROUND
A. State’s Evidence
The complainant, Ruperto Garcia (―Mr. Garcia‖) testified that around 2:00 or 2:30
a.m. on March 20, 2010, he arrived home to find his home being burglarized. Mr. Garcia
saw Marvin Sanchez1 and Gutierrez exit his home, and enter into a Toyota pickup truck
which was parked in front of the house. Mr. Garcia saw that Gutierrez was carrying some
DVDs and saw him place them in the back of the Toyota pickup truck. Mr. Garcia followed
the truck for a few blocks, obtained the license plate number, and returned home to call the
police. Mr. Garcia reported to the police that his house was burglarized and told the police
the truck’s license plate number. Mr. Garcia testified that his bedroom window had been
opened, the blinds were scattered, property was strewn throughout the house, and that he
saw some DVDs in the front yard. Mr. Garcia testified that even though the light switch
remained on, it was apparent that the light bulb in the front porch was unscrewed to an off
position because a child’s chair was placed directly beneath it to serve as a step stool to
reach the bulb. Mr. Garcia testified that some of the property missing from his house
included a laptop computer, a DVD player, and several DVDs, including ―Dora, the
Explorer.‖
The police department issued a dispatch regarding the burglary and gave a
description of the Toyota pickup truck and its license plate number. Officer Lee Galloway
responded to the dispatch and drove to Mr. Garcia’s residence. Officer Galloway testified
that he found some DVDs in Mr. Garcia’s yard. He further testified that a bedroom window
was halfway open and that the porch light was off, with a chair underneath it.
1 Marvin Sanchez was also indicted for this offense, but was not tried together with appellant. 2 Officer Gabe Garcia testified that he responded to the dispatch by driving to 129
Mohawk, the residence where the truck was registered. Upon arrival, Officer Garcia
shined a spot light on a Toyota pickup truck and confirmed the license plate matched the
license plate number identified in the police dispatch. Officer Garcia saw Gutierrez exit the
truck’s passenger side with an object in his hand and hide behind a brick pillar. He
ordered Gutierrez to move from behind the pillar, after which he was handcuffed. Officer
Garcia testified that Officer Galloway told him that some children’s DVDs were stolen from
Mr. Garcia’s home. Officer Garcia looked inside the Toyota pickup truck and saw a child’s
DVD entitled ―Dora, the Explorer,‖ inside the truck. Thereafter, Mr. Garcia identified
Gutierrez during a field identification as one of the men he saw burglarizing his home, and
stated that Gutierrez was wearing the same clothing as he did when he saw Gutierrez
leaving his home.
Detective Trujillo testified during cross-examination that Marvin Sanchez, the other
person identified by Mr. Garcia on the night of the burglary, stated Gutierrez was involved
in the burglary.
B. Defendant’s Evidence
Gutierrez did not testify at trial. Gutierrez’s grandmother, with whom he lives,
testified that Gutierrez was home at the time of the burglary. Officer Garcia testified on
cross-examination that he did not check the Toyota pickup truck to see if it had been
recently driven. Officer Kelly Martinez testified on cross-examination that no elimination
fingerprints were taken. Mr. Garcia testified on cross-examination that he was burglarized
about two and a half weeks prior to this incident, and that he had concluded Gutierrez was
involved in that burglary.
3 II. STANDARD OF REVIEW
When reviewing legal sufficiency, the court must ask itself whether, after reviewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt— not whether
it believes the evidence establishes the verdict beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979). The jury is the sole judge of a witness's credibility
and the weight to be given the testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008). The reviewing court should not act as a thirteenth juror that substitutes
its own opinion of the credibility and weight of the evidence for that of the fact-finder's.
See Brooks v. State, 323 S.W.3d 893, 905 (Tex. Crim. App. 2010). Instead, the reviewing
court must resolve inconsistencies in testimony in favor of the verdict and then ask
whether a rational trier of fact could have found the elements of the crime beyond a
reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
To measure legal sufficiency, we use the elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.
App. 2009). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. A person commits the offense of burglary if, without the
effective consent of the owner, he or she enters a habitation with intent to commit theft.
TEX. PENAL CODE ANN. § 30.02 (a)(1) (West 2003).
It is not necessary that the evidence directly prove the defendant's guilt;
circumstantial evidence is as probative as direct evidence in establishing the guilt of the
4 actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kuciemba v. State, 310 S.W.3d 460, 462
(Tex. Crim. App. 2010). A fact-finder may support its verdict with reasonable inferences
drawn from the evidence, and it is up to the fact-finder to decide which inference is most
reasonable. Laster v. State,
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NUMBER 13-10-00302-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG ____________________________________________________
JOSE GUTIERREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas ____________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes Memorandum Opinion by Justice Perkes
A jury convicted appellant, Jose Gutierrez, of the offense of burglary of a habitation.
See TEX. PENAL CODE § 30.02 (West 2003). The trial court assessed punishment at five
years confinement in the Institutional Division of the Texas Department of Criminal Justice.
In a single issue, Gutierrez contends the evidence is legally insufficient to establish that he
committed the offense of burglary of a habitation. We affirm. I. BACKGROUND
A. State’s Evidence
The complainant, Ruperto Garcia (―Mr. Garcia‖) testified that around 2:00 or 2:30
a.m. on March 20, 2010, he arrived home to find his home being burglarized. Mr. Garcia
saw Marvin Sanchez1 and Gutierrez exit his home, and enter into a Toyota pickup truck
which was parked in front of the house. Mr. Garcia saw that Gutierrez was carrying some
DVDs and saw him place them in the back of the Toyota pickup truck. Mr. Garcia followed
the truck for a few blocks, obtained the license plate number, and returned home to call the
police. Mr. Garcia reported to the police that his house was burglarized and told the police
the truck’s license plate number. Mr. Garcia testified that his bedroom window had been
opened, the blinds were scattered, property was strewn throughout the house, and that he
saw some DVDs in the front yard. Mr. Garcia testified that even though the light switch
remained on, it was apparent that the light bulb in the front porch was unscrewed to an off
position because a child’s chair was placed directly beneath it to serve as a step stool to
reach the bulb. Mr. Garcia testified that some of the property missing from his house
included a laptop computer, a DVD player, and several DVDs, including ―Dora, the
Explorer.‖
The police department issued a dispatch regarding the burglary and gave a
description of the Toyota pickup truck and its license plate number. Officer Lee Galloway
responded to the dispatch and drove to Mr. Garcia’s residence. Officer Galloway testified
that he found some DVDs in Mr. Garcia’s yard. He further testified that a bedroom window
was halfway open and that the porch light was off, with a chair underneath it.
1 Marvin Sanchez was also indicted for this offense, but was not tried together with appellant. 2 Officer Gabe Garcia testified that he responded to the dispatch by driving to 129
Mohawk, the residence where the truck was registered. Upon arrival, Officer Garcia
shined a spot light on a Toyota pickup truck and confirmed the license plate matched the
license plate number identified in the police dispatch. Officer Garcia saw Gutierrez exit the
truck’s passenger side with an object in his hand and hide behind a brick pillar. He
ordered Gutierrez to move from behind the pillar, after which he was handcuffed. Officer
Garcia testified that Officer Galloway told him that some children’s DVDs were stolen from
Mr. Garcia’s home. Officer Garcia looked inside the Toyota pickup truck and saw a child’s
DVD entitled ―Dora, the Explorer,‖ inside the truck. Thereafter, Mr. Garcia identified
Gutierrez during a field identification as one of the men he saw burglarizing his home, and
stated that Gutierrez was wearing the same clothing as he did when he saw Gutierrez
leaving his home.
Detective Trujillo testified during cross-examination that Marvin Sanchez, the other
person identified by Mr. Garcia on the night of the burglary, stated Gutierrez was involved
in the burglary.
B. Defendant’s Evidence
Gutierrez did not testify at trial. Gutierrez’s grandmother, with whom he lives,
testified that Gutierrez was home at the time of the burglary. Officer Garcia testified on
cross-examination that he did not check the Toyota pickup truck to see if it had been
recently driven. Officer Kelly Martinez testified on cross-examination that no elimination
fingerprints were taken. Mr. Garcia testified on cross-examination that he was burglarized
about two and a half weeks prior to this incident, and that he had concluded Gutierrez was
involved in that burglary.
3 II. STANDARD OF REVIEW
When reviewing legal sufficiency, the court must ask itself whether, after reviewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt— not whether
it believes the evidence establishes the verdict beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979). The jury is the sole judge of a witness's credibility
and the weight to be given the testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008). The reviewing court should not act as a thirteenth juror that substitutes
its own opinion of the credibility and weight of the evidence for that of the fact-finder's.
See Brooks v. State, 323 S.W.3d 893, 905 (Tex. Crim. App. 2010). Instead, the reviewing
court must resolve inconsistencies in testimony in favor of the verdict and then ask
whether a rational trier of fact could have found the elements of the crime beyond a
reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
To measure legal sufficiency, we use the elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.
App. 2009). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's burden of proof or unnecessarily
restrict the State's theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. A person commits the offense of burglary if, without the
effective consent of the owner, he or she enters a habitation with intent to commit theft.
TEX. PENAL CODE ANN. § 30.02 (a)(1) (West 2003).
It is not necessary that the evidence directly prove the defendant's guilt;
circumstantial evidence is as probative as direct evidence in establishing the guilt of the
4 actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kuciemba v. State, 310 S.W.3d 460, 462
(Tex. Crim. App. 2010). A fact-finder may support its verdict with reasonable inferences
drawn from the evidence, and it is up to the fact-finder to decide which inference is most
reasonable. Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009). The State may
show entry by circumstantial evidence or inference. Gilbertson v. State, 563 S.W.2d 606,
608–09 (Tex. Crim. App. 1978).
III. ANALYSIS
Mr. Garcia identified Gutierrez as one of the two persons that he saw leaving his
house in the early morning hours of March 20, 2010. He described the vehicle and license
plate number. Officer Garcia identified Gutierrez as the person who exited the described
Toyota pickup truck that he saw at Gutierrez’s grandmother’s home, and who immediately
hid behind a brick pillar. An eyewitness’s testimony identifying the defendant is sufficient,
standing alone, to support the conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.
Crim. App. 1971). Further, the defendant’s hiding and efforts to avoid apprehension
immediately after the offense likewise create an inference of guilt. See Hernandez v.
State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997); Burks v. State, 876 S.W.2d 877, 888
(Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114 (1995).
Additionally, Mr. Garcia reported he was missing, among other things, a children’s
DVD entitled ―Dora, the Explorer.” A copy of this DVD was found in the Toyota pickup
truck. Gutierrez provided no explanation for his possession of this DVD. A defendant’s
unexplained possession of property recently stolen in a burglary permits an inference that
the defendant is the one who committed the burglary. Rollerson v. State, 227 S.W.3d 718,
5 725 (Tex. Crim. App. 2007) (citing Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App.
2006)). A fact finder is entitled to draw multiple reasonable inferences as long as each
inference is supported by the evidence presented at trial. Hooper v. State, 214, S.W.3d 9,
15 (Tex. Crim. App. 2007).
With respect to Gutierrez’s alibi witness, the jury, as the trier of fact, is the sole
judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or
disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). We presume that the trier of fact resolved conflicts in favor of
conviction. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In reviewing all of
the evidence presented at trial in the light most favorable to the verdict, we find that it
proves beyond a reasonable doubt that Gutierrez committed the crime for which the jury
found him guilty. We overrule the sole issue for review.
III. CONCLUSION
We affirm the trial court’s judgment.
______________________________ GREGORY T. PERKES Justice
Do not publish. See TEX. R. APP. P. 47.2(b).
Delivered and filed the 22nd day of August, 2011.