Williams v. State

766 S.W.2d 849, 1989 Tex. App. LEXIS 814, 1989 WL 31585
CourtCourt of Appeals of Texas
DecidedFebruary 22, 1989
DocketNo. 09-88-192-CR
StatusPublished
Cited by1 cases

This text of 766 S.W.2d 849 (Williams v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. State, 766 S.W.2d 849, 1989 Tex. App. LEXIS 814, 1989 WL 31585 (Tex. Ct. App. 1989).

Opinion

OPINION

BROOKSHIRE, Justice.

This is an appeal from a jury conviction of Appellant on the charge of burglary of a building. TEX.PENAL CODE ANN. sec. 30.02(a)(2) (Vernon 1974). Upon a plea of true to two enhancement counts as a felony habitual offender, Appellant was sentenced to a punishment of life imprisonment in the Texas Department of Corrections. Appellant now urges only one point of error, to wit: that the trial court was in error overruling the Appellant’s motion for an instructed verdict of acquittal, and that there is insufficient evidence in any event to support a conviction. We overrule Appellant’s point of error and affirm the judgment of the trial court below, for the reasons stated in this opinion.

The burglary which occasioned this case occurred on the night of November 17-18, 1987. The building so burglarized was the Lamar University Regional Police Academy in Beaumont, Texas. The secretary at the Police Academy, Linda Cone, testified that she arrived at the Academy building at 7:30 a.m. on the morning of November 18th, to open the building which housed offices and classrooms of the Academy. She testified that upon coming to the front door she noticed that the door had been pried open, with the door lock still in a locked position, but the door itself bent and standing open. Ms. Cone further testified that when she went inside to her office that the doors to all of the offices had been pried open, as well as those of the Academy classrooms. The offices had been ransacked, and some of the windows of the doors to those offices and classrooms were broken. Ms. Cone stated that her office was similarly broken into, with much of her “paperwork” strewn on the floor. Furthermore, a black- and-white five-inch television that she kept in the office was missing. She testified that she then found the back door to the building propped open with a board, and outside the door a VCR kept in one of the classrooms for cadet training was left on the ground.

Mr. Gary Duncan, Director of the Police Academy, testified that when he left the Academy at 6:30 p.m. on November 17th, he locked the building and saw nothing that seemed to be out of order. He further testified that he arrived at the Academy about forty-five or fifty minutes after Ms. Cone did the next morning, and found that two Remington shotguns had also been taken. He also stated that a remote control for a monitor used in one of the classrooms had been stolen, and in addition a cache of fake “replica” guns, which were used in cadet training, had been taken. These guns had been rendered harmless, but they did have the appearance of true lethal weapons. Mr. Duncan stated that he gave no one consent to enter the building in question to take any of the items in question.

Officer Pat Gurski of the Beaumont Police Department testified that he conducted the investigation of the break-in, along with the late Officer Paul Hulsey, Jr. A fingerprint analysis was made of several latent prints found at the scene by another officer, Al Mouton, who was called to the scene, but a check of those prints did not match those of Appellant. No one testified that they saw Appellant at or near the scene of the crime. However, Officer Gur-ski testified that two unnamed informants told him that Appellant had committed the crime. Officer Gurski testified that a search warrant was obtained pursuant to that information on the afternoon of November 18th; and thereupon he, two other officers and Mr. Duncan went to Appellant’s boarding house residence for the purpose of conducting a search. Appellant [851]*851shared a one bedroom apartment in a boarding house with Sharon Patterson (then Sharon Tezeno), who was his common-law wife. Appellant was not present when the officers came to the residence, but Ms. Patterson was there. The officers found the television, the remote control, and the cache of fake handguns that were taken in the burglary the previous night. These items were so identified by both Mr. Duncan and Ms. Cone. Appellant was arrested on December 16, 1987, pursuant to an arrest warrant issued at or before that date.

Sharon Patterson testified for Appellant, and stated initially that tire stolen items were brought to her by an acquaintance known only as “Doe”. However, under skillful cross-examination by Assistant District Attorney Larry Eastepp, Ms. Patterson admitted that it was Appellant who brought the television into the room the night of the burglary.

The Appellant was convicted, therefore, on the basis of circumstantial evidence, to wit: the stolen items which were found in his possession, that is, in his residence. A conviction based on circumstantial evidence will be sufficiently supported if the facts proved support a reasonable inference that the accused committed the crime and exclude to a moral certainty any inference consistent with his innocence. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1938) (Opinion on Rehearing); Galvan v. State, 598 S.W.2d 624 (Tex.Crim.App.1979). However, such a conviction cannot be sustained unless the circumstances exclude all the reasonable hypotheses except that of the defendant’s guilt. Wilson, supra. In the case such as that before us, the rale is well-settled concerning the probative nature of possession of stolen goods in a prosecution for burglary or theft. In Russell v. State, 86 Tex.Cr.R. 609, 218 S.W. 1049 (Tex.Crim.App.1920), the Court of Criminal Appeals enunciated the rule still applied today:

“When there is proof that a burglary has been committed, and property stolen from the premises, the possession of the property thus recently stolen has been considered as a circumstance of such cogency that it will sustain the verdict of the jury connecting the possessor of the property with the offense. [Citations omitted] To support such finding, however, the possession must be personal, recent, and unexplained, and must involve a distinct and conscious assertion of property by the accused.”

In Rodriguez v. State, 549 S.W.2d 747 (Tex.Crim.App.1977), the Court restated the rale announced in Russell, supra, that an inference of defendant’s guilt of burglary or theft may arise from possession of property stolen in a recent burglary, if such possession is personal, recent, unexplained by defendant, with distinct and conscious assertion of right to that property by the defendant. In Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App.1983), the Court further clarified the rale. The Court held that while such possession does not create a presumption of guilt, an inference of guilt does arise, which makes the conviction under all the evidence subject to the typical rales of appellate review of convictions based on circumstantial evidence. To wit, a conviction is sustained if, examining the evidence in a light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt Hardesty, supra, at 77, Wilson, supra.

In Ledford v. State, 721 S.W.2d 486

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Bluebook (online)
766 S.W.2d 849, 1989 Tex. App. LEXIS 814, 1989 WL 31585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-state-texapp-1989.