Mark Howard Priest v. State

• Court: Court of Appeals of Texas
• Decided: March 18, 2004
• Docket: 01-02-01352-CR
• Status: Published

Opinion

Opinion issued March 18, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01352-CR

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 MARK HOWARD PRIEST, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 230th District Court

 Harris County, Texas

Trial Court Cause No. 915480

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MEMORANDUM OPINION

          A jury convicted appellant, Mark Howard Priest, of burglary of a habitation with intent to commit theft. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). After finding true two enhancement paragraphs alleging prior convictions for burglary and robbery, the jury assessed appellant’s punishment at confinement for 60 years.

          We determine (1) whether the trial court erred by denying appellant’s motion for a directed verdict, (2) whether the evidence is legally sufficient to support appellant’s conviction, and (3) whether the evidence is factually sufficient to support appellant’s conviction. We affirm.

Facts

           On June 18, 2002, at approximately 7:00 p.m., the complainant, Randy Starnes, was sitting in his backyard with his wife and mother-in-law, when he noticed a shadow moving across the back of his house. Starnes saw the movement because there was a large picture window at the back of the house from which the inside of the house was visible. Upon entering the house from the back door, Starnes observed that the front door was open. After walking into the living room, Starnes saw appellant coming out of Starnes’s office, which was at the front of the house. Starnes and appellant looked at each other for a few seconds, and appellant did not answer when Starnes asked him what he was doing in the house. Appellant ran out of the house, and Starnes ran out after him. After chasing appellant down the street, Starnes momentarily lost sight of appellant. Two women who were driving by noticed the two men running and stopped their car to ask Starnes what was wrong. Starnes told them that the man whom he was chasing had intruded into his home, and Starnes asked them to call the police. The two women backed up their car and saw appellant run down into a culvert. Soon thereafter, the police arrived, brought appellant out of the culvert, and arrested him. When Starnes returned home, he discovered that the top right desk drawer in his office was open and that the five dollars that he kept in that drawer every week for his step-son’s allowance was missing. Standard of Review

          The standard of review for legal sufficiency is to view the evidence in the light most favorable to the conviction and to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim App. 2000). The standard of review for factual sufficiency is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak, or so contrary to the overwhelming preponderance of the evidence, as to undermine confidence in the jury’s determination of guilt. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).

Motion for Directed Verdict

          In his first point of error, appellant contends that the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to support his conviction as a matter of law. We construe a point of error asserting that the trial court erred in denying a motion for a directed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Turner v. State, 101 S.W.3d 750, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Because appellant challenges the legal sufficiency of the evidence in his second point of error, we will consider points of error one and two together.

Legal Sufficiency

          In his second point of error, appellant contends that the evidence is legally insufficient to show that he committed burglary. A person commits burglary if, without the owner’s consent, he enters a habitation with intent to commit a theft. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). Appellant does not dispute the fact that he was in Starnes’s house without his consent, but appellant asserts that the State failed, as a matter of law, to prove that he had intended to commit theft.

          Starnes testified that (1) he saw appellant coming out of the office, (2) the top right desk drawer in the office was open when he returned home from having chased appellant, (3) he always left five dollars in that drawer, and (4) the five dollars was not in the open drawer. The evidence also showed that appellant did not answer Starnes when he asked appellant what he was doing in the house and that appellant ran out of the house. Although the police never found the five dollars in question, the jury was free to infer appellant’s intent to commit theft from his having entered the house without permission, his having been in the office in which a desk drawer containing five dollars had been opened, his refusing to answer Starnes’s question, his running from the house, and his hiding in a culvert. See McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989) (emphasizing that intent to steal “may be inferred from the actions or conduct of appellant.”). Viewed in the light most favorable to the verdict, we hold that a rational juror could have found all the essential elements of the crime beyond a reasonable doubt.

          We overrule appellant’s first and second points of error.

Factual Sufficiency

          In his third point of error, appellant asserts that the evidence was factually insufficient to show that he committed burglary.

          Appellant contends that the evidence is factually insufficient because of conflicts in the testimony of Starnes, a police officer, and another witness. First, appellant points to the officer’s testimony that Starnes told him that he had originally thought it was Starnes’s stepson inside the house. Second, the officer testified that Starnes told him that he had seen someone going through his office desk. Finally, the officer testified that there were at least two desk drawers open when he returned to Starnes’s house. However, Starnes testified that he never told the officer that he thought the person in his house was his stepson because his stepson was not home. Starnes also denied making the statement that he had seen someone going through his office desk. Starnes further stated that only one of the desk drawers was open.

          In addition, appellant asserts that Ms. Hernandez, the driver of the car who stopped Starnes to see what was wrong, testified that Starnes told her that he was chasing a burglar, even though he testified that he did not notice the missing money until after the police had detained appellant. The officer also received a call that there was a burglary in progress. Appellant argues that these statements are so contradictory that Starnes’s testimony is unreliable and factually insufficient to support appellant’s conviction. We disagree.

          It is well settled that the jury is the sole judge of the weight and credibility of witness testimony. Johnson, 23 S.W.3d at 7. Consequently, the jury was entitled to believe Starnes’s testimony as to what he saw at his house and to disbelieve the testimony of the officer or any other witness. See Harmond v. State, 960 S.W.2d 404, 407 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (noting that jury is permitted to weigh credibility of witnesses and disbelieve evidence as it sees fit). Accordingly, we hold that the evidence was not so weak or so overwhelmingly in favor of appellant that the jury’s verdict was manifestly wrong and unjust.

          We overrule appellant’s third point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                             Tim Taft

                                                             Justice

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).