Michael Ray Walker v. State

• Court: Court of Appeals of Texas
• Decided: May 1, 2007
• Docket: 14-06-00598-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 1, 2007

Affirmed and Memorandum Opinion filed May 1, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00598-CR

MICHAEL RAY WALKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1068596

M E M O R A N D U M   O P I N I O N

Appellant, Michael Ray Walker, was tried for murder and the offense of being a felon in possession of a firearm.  Appellant waived his right to trial by jury, and the court found him not guilty of murder, but guilty of being a felon in possession of a firearm.   On appeal, appellant complains that the evidence offered at trial was legally and factually insufficient to prove he committed burglary of a building, as alleged in the indictment.  Because we find the evidence was legally and factually sufficient to prove the commission of burglary of a building, we affirm.

Factual and Procedural Background

On May 29, 2005, appellant went to the 3400 block of Dennis Street in Houston to buy marijuana.  He encountered Roel Castillo, who was selling marijuana, and the two began a conversation on the steps of an apartment complex.  The conversation turned into an argument, with harsh words being exchanged between the two.  Castillo drew a pistol and pointed it at appellant.  Appellant then drew his own firearm and shot several rounds at Castillo.  Castillo received three gunshot wounds, and died from his injuries.

Appellant fled the scene, taking his weapon and Castillo=s pistol with him, and disposing of them in the Houston Ship Channel.  He later turned himself in and gave a videotaped statement to the police explaining his version of events.  Appellant was charged by an indictment with first degree murder and the felony offense of being a felon in possession of a firearm.  Specifically, the indictment charged him with possessing a firearm after having been convicted of burglary of a building.  He pleaded not guilty to both charges.

At trial, a fingerprint examiner from the Harris County Sheriff=s Department Crime Scene Unit testified that he compared appellant=s fingerprint to the fingerprint on a judgment and sentence of prior conviction for Aburglary with intent to commit theft.@  The judgment stated that judgment was entered and sentence imposed on December 10, 2002.  The judgment also stated the punishment as 12 months in the State Jail Division of the Texas Department of Criminal Justice.

Appellant testified at trial in his defense, and on cross examination admitted he had been convicted of burglary and had been imprisoned for the offense in 2002.  He contended, however, that it was not burglary of a building, but burglary of a house. 

Analysis

I.        Legal Sufficiency

In his first issue, appellant argues that the evidence adduced at trial was legally insufficient to prove that his possession of a firearm was after a conviction of Aburglary of a building@ as stated in the indictment.  

A.      Standard of Review

In reviewing a 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.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the fact-finder to reconcile conflicts in the evidence.  See id.  We may not reevaluate the weight and credibility of the record evidence, and thereby substitute our judgment for that of the fact-finder.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We evaluate the legal sufficiency of evidence based on the hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). 

B.      Evidence Was Legally Sufficient

As part of proving the offense of felon in possession of a firearm, the State had to prove conviction of a felony, and possession of a firearm within five years of the felon=s release from prison, or from community supervision, parole, or mandatory supervision, whichever is later.  See Tex. Penal Code ' 46.04.  Here, the indictment stated in pertinent part, ADefendant, heretofore on or about May 29, 2005, did then and there unlawfully intentionally and knowingly possess a firearm, after having been convicted of a felony, namely, BURLARY [sic] OF A BUILDING in the 337th District Court of Harris County, Texas, in Cause Number 926695 on December 10, 2002....@  By naming the felony, the court, the cause number, and the date, the State may have pleaded more information than necessary, but for purposes of this appeal, we will consider the indictment to be incorporated into our hypothetically correct jury charge. ^[1]

Appellant argues that the testimony of Randy Schield, a fingerprint expert, that the fingerprints on a certified copy of a judgment and sentence belonged to appellant is inadequate because the judgment and sentence recite a conviction for Aburglary with intent to commit theft,@ rather than Aburglary of a building@ as stated in the indictment.  However, those are not necessarily two different offenses.  They could also be two ways of stating the same offense.  An examination of section 30.02 of the Texas Penal Code reveals that each of the ways that burglary can be committed involves entering or remaining in a Abuilding@ or Ahabitation@ and intending to commit or actually committing a felony, theft, or assault without the effective consent of the owner.  See Tex. Penal Code ' 30.02.  Thus, where the offense was committed, and what type of behavior was engaged in or intended, are separate elements of the same offense.  ABurglary of a building@ could be an abbreviated way of saying Aburglary of a building with intent to commit theft.@ 

Furthermore, the judgment and sentence that was admitted into evidence provided that the sentence for the offense was 12 months in the State Jail Division of TDCJ.  This punishment is available only for offenses committed in buildings other than habitations, i.e., in buildings.  See Tex. Penal Code ' 30.02(c).  Therefore, the testimony of the fingerprint expert combined with the judgment and sentence showed that appellant was previously convicted of burglary of a building, as stated in the indictment.  The fact that the judgment and sentence stated that the burglary was Awith intent to commit theft@ does not contradict the indictment in any way.

Appellant also testified regarding the prior offense.  He testified that he was convicted of burglary, and went to state jail for the conviction in 2002.  He claimed the conviction was for burglary of a Ahouse@ rather than burglary of a building.  Burglary of a house is not the same as burglary of a habitation.  A house can be a building and not a habitation if it is not adapted for overnight accommodation of persons.  See Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989) (enumerating factors to determine if a structure is adapted for overnight accommodations). The testimony of the fingerprint expert and the admitted judgment of conviction provide legally sufficient evidence that appellant had been convicted of burglary of a building.       The evidence presented at trial concerning appellant=s prior conviction for burglary of a building is more than enough to enable a rational trier of fact to find that it had been proved beyond a reasonable doubt. 

II.       Factual Sufficiency

A.      Standard of Review

We review the factual sufficiency of the evidence by viewing all the evidence in a neutral light.  See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).   We may set the verdict aside if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We must discuss the evidence that, according to appellant, most undermines the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim . App. 2003).

B.      Evidence Was Factually Sufficient

We have already discussed that the prior sentence that was admitted into evidence affirmatively shows, through the length of sentence, that appellant was convicted previously for burglary of a building.  The only evidence brought forward by appellant to refute this is the fact that the judgment and sentence from the prior conviction states Aburglary with intent to commit theft@ rather than Aburglary of a building,@ and the fact that appellant denied being convicted of burglary of a building.

  The only evidence that appellant was convicted of burglary of a house is the testimony of appellant.  The court, as the trier of fact was free to disbelieve appellant=s testimony in favor of the judgment and sentence offered into evidence by the State.  It is not our place to reevaluate the credibility of evidence before the trier of fact.  See Cain, 958 S.W.2d at 407.

As discussed above, neither of these pieces of evidence truly refutes the State=s evidence, and certainly not to an extent that we can say the verdict is clearly wrong or unjust, or that the verdict is against the great weight and preponderance of evidence.  Therefore, the evidence was factually sufficient to support the conviction.

Conclusion

Having overruled both appellant=s legal sufficiency and factual sufficiency issues, we affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed May 1, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We do not treat this case as one involving a variance under Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) because under Gollihar, a variance occurs when the State has proven a defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations.  Gollihar, 46 S.W.3d at 246.  As we explain in this opinion, we believe that the State has proven appellant guilty of a crime in accordance with its allegations in the indictment.  Therefore variance law does not apply here.