Taylor v. State

774 S.W.2d 31, 1989 Tex. App. LEXIS 1550, 1989 WL 61446
Court of Appeals of Texas·Decided June 8, 1989·No. C14-88-1065-CR·Published·Cited by 35 cases

Opinion

OPINION

ELLIS, Justice.

Appellant, Fredrick Taylor, appeals from a judgment of conviction for the offense of burglary of a building. TEX.PENAL CODE ANN. § 30.02 (Vernon 1974). The jury rejected appellant’s “not guilty” plea and found him guilty as charged in the indictment. The trial court, finding the two enhancement paragraphs of the indictment to be “true,” assessed his punishment at twenty-five years confinement in the Texas Department of Corrections. We affirm.

In two points of error, appellant submits the evidence is insufficient to sustain a conviction for burglary of a building and that the court erred by allowing the arresting officer to testify as to his opinion regarding appellant’s credibility.

Appellant contends the evidence is insufficient to support his conviction for burglary of a building because the State failed to establish that he entered the building with the intent to commit theft. Appellant asserts that since he offered “a reasonable explanation” that he was in the building to escape from mosquitoes, he should have been found guilty of the lesser-included offense of criminal trespass. We are not persuaded by this argument.

On the night of September 12, 1988, the A-l Truck Tire Service building at 1020 Jensen was entered. Calvin Volcy was the owner of the business. A-l Truck Tire Service was a building comprised of three rooms with one door in the front and glass plated windows on each side of the door. On September 12, 1988, Mr. Volcy closed his shop at 5:00 p.m., locked up and went home. Later that night, at around 9:00 p.m., he received a telephone call from Margaret Phillips about a break-in at his business. Mrs. Phillips witnessed two men burglarize Mr. Volcy’s business while she was sitting on the front porch of her house located directly across the street from A-l Truck Tire Service. She saw two men walking out of the shop carrying some tires. She called Mr. Volcy and the police to report the burglary.

When Mr. Volcy arrived at A-l Truck' Tire Service, Roy Anderson and his wife were there waiting for him. Mr. Anderson lived across the street from the business at 2603 Providence. He too, had called Mr. Volcy after observing two men break into the tire shop. Mr. Anderson heard the sound of glass breaking and went to the tire shop to see what happened. He saw appellant and another male exiting A-l Truck Tire Service. Appellant and the other man walked past Mr. Anderson, each carrying two tires. Appellant asked Mr. Anderson “what’s up” and kept walking down Jensen. Appellant was wearing a white “Houston Chronicle” tee shirt and blue jeans.

After Mr. Volcy arrived, he noticed that the right front window of his business was broken out. He went inside and discovered that four tires, a radio, telephone, and several miscellaneous items were missing. Mr. Volcy and the Andersons drove around the immediate neighborhood to look for the two perpetrators. With no success at finding them, they returned to Margaret Phillips’ house. While standing outside of Mrs. Phillips’ house, they saw the two men returning to the tire shop. Mr. Volcy and Mr. Anderson witnessed appellant enter A-l Truck Tire Service by crawling through the broken front window. Mr. Volcy then retrieved a gun from his car and went to the front of the store. He shouted for appellant to come out of the building. Appellant’s companion ran across the street and hid behind a light *33 pole. The companion was never apprehended.

Mrs. Phillips recognized appellant by the clothing he was wearing to be one of the males she saw taking tires from Mr. Vol-cy’s shop. Mr. Anderson recognized both appellant and his cohort as the same men he saw carrying tires from Mr. Volcy’s shop. Appellant hid inside the tire shop while Mr. Yolcy and Mr. Anderson waited outside of the building. The police arrived at the scene one hour later at around 11:00 p.m.

After the police arrived, they ordered appellant to come out of the building. They received no response. The police then told appellant that, if he refused to come out, they would obtain the assistance of a canine unit. Consequently, appellant shouted “I’m coming out” and exited the building from the front door. Appellant was wearing blue jeans and a white tee shirt with “Houston Chronicle” written on the front of it. Appellant told Officer W.E. Baker that the reason he was inside of the building was to get away from the mosquitoes. Mr. Volcy did not give the appellant permission to enter his tire shop.

Appellant did not testify at trial. However, appellant argues that, since Officer W.E. Baker testified that appellant told him that he had entered A-l Truck Tire Service for a purpose other than to commit theft, i.e., to get away from the mosquitoes, the evidence is insufficient to sustain his conviction. It was the jury’s prerogative to believe or disbelieve appellant’s story. Mr. Yolcy testified that when he arrived at the tire shop, the front window was broken out and four tires along with other items were missing from inside the building. Mr. Anderson testified that, after he heard the sound of glass breaking, he saw appellant and another man taking four tires out of A-l Truck Tire Service. He saw appellant again when he and his companion returned to the business. This time both Mr. Volcy and Mr. Anderson saw appellant enter the shop through the broken front plate glass as his cohort fled.

Moreover, Mrs. Phillips testified that she recognized appellant as one of the men who broke into A-l Truck Tire Service by the clothing he was wearing. Not only was appellant viewed by eyewitnesses committing the first break-in, appellant was caught red-handed when he entered the business the second time. Once appellant discovered he was caught by Mr. Volcy, he hid inside the building for approximately one hour until the police convinced him to exit the building.

The standard of reviewing the sufficiency of evidence in a criminal case is that the evidence must be viewed in the light most favorable to the jury’s verdict. The judgment will be upheld when any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moreno v. State, 755 S.W.2d 866 (Tex.Crim.App.1988). By complaining about the sufficiency of the evidence in this case, appellant improperly asks this Court to reassess the witnesses’ testimony when the jury has already passed upon the credibility thereof and having observed their demeanor firsthand. Simply because the jury did not find the appellant’s explanation for being inside A-l Truck Tire Service convincing is not grounds for finding insufficient evidence to support the verdict. Beardsley v. State, 738 S.W.2d 681 (Tex.Crim.App.1987). The jury, as trier of fact, is the sole judge of the weight to be given a witness’ testimony. The jury may choose to accept or reject a witness’ testimony, including appellant’s. It is not the role of the appellate court to judge the credibility of the evidence or substitute its own evaluations of the facts for that of the factfinder. Moreno v. State, 755 S.W.2d at 867; Beardsley v. State, 738 S.W.2d at 685.

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Taylor v. State, 774 S.W.2d 31, 1989 Tex. App. LEXIS 1550, 1989 WL 61446 (Tex. Ct. App. 1989).

774 S.W.2d 31 (Taylor v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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