Opinion
No. 01-10-00094-CR
Opinion issued April 21, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas, Trial Court Case No. 1227227.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION
A jury convicted appellant, Billy Detroy Mitchell, of burglary of a motor vehicle with two prior convictions for burglary of a motor vehicle. See TEX. PENAL CODE ANN. § 30.04(a), (d)(2)(A) (Vernon Supp. 2010). Appellant pleaded true to two prior felony enhancements for unauthorized use of a motor vehicle. The jury then assessed punishment at 20 years' confinement and a $10,000 fine. The trial court ordered that appellant's sentence would run consecutively after appellant served his earlier sentence for unauthorized use of a motor vehicle. In points of error one and two, appellant contends the evidence is insufficient to support his conviction. In points of error three and four, appellant contends that the "stacking" of his sentences constitutes cruel and unusual punishment and violates his right to due process. We affirm.
BACKGROUND
Celeste Jones and Sharon Hampton, nurse managers at M.D. Anderson Hospital, were walking through the Pressler Parking Garage at M.D. Anderson on their way to lunch when they noticed a man on a bicycle standing next to a truck. Jones and Hampton noticed that there was broken glass on the ground near the truck and that its driver's side window was broken. When the man on the bicycle heard the women talking, he rode down the ramp of the parking garage toward the exit. Jones and Hampton went to office of the garage to report what they had seen. Both described the man they had seen as wearing dark clothes and a skull cap. Hampton believed that the man was African-American. After reporting the incident, the women went back down to their car, which was parked on the same level as the truck with the broken window. Once there, they met Jared Hillard, a maintenance specialist for M.D. Anderson, who had gone down to investigate the broken truck window. The three looked out of the garage and saw a man matching the description given by the women riding away from the parking garage on the street below. Hilliard, who was in contact with the University of Texas Police Department dispatcher, reported that he was "watching a[n] individual leave the premises that matched the description of someone that [had been] breaking into a vehicle and directed [UT Police to] the location." Officer Riner, of UT Police, was less than a minute away from the Pressler garage when he received a dispatch that an "individual was leaving the Pressler Garage and he was going southbound on Bertner and then going behind the hotel, which is directly behind the garage." Riner went to the location where the suspect had last been seen. As he turned the corner, "there was a black male on a bicycle with a black shirt . . . black shorts and a black nylon ski cap or black nylon hat." Because the person matched the description he had been given in the dispatch, Riner decided to follow him. Riner saw the man stop and go into a convenience store which was located two blocks away from the Pressler garage. While the man was in the store, Riner looked at his bicycle and saw that a screwdriver and pliers were tied to it. When the man — appellant — came out of the store, Riner detained him. Riner told appellant that he was being detained because he fit the description of a person suspected of burglarizing a motor vehicle in the Pressler garage. Appellant said that he had just been "cutting through" the garage. Riner noticed that appellant had small glass cuts on his hands and glass shards in his hair. Appellant was arrested and charged with burglarizing the truck in the Pressler garage, which was owned by Ricardo Menendez, an M.D. Anderson employee.SUFFICIENCY OF THE EVIDENCE
In points of error one and two, appellant contends the evidence is legally and factually insufficient to support his conviction.Standard of Review
This Court reviews legal and factual sufficiency challenges using the same standard of review. Ervin v. State, 331 S.W.3d 49, 53-55 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 926 (Tex. Crim. App. 2010)). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 n. 11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the evidence is insufficient as a matter of law if the acts alleged do not constitute the criminal offense charged. Williams, 235 S.W.3d at 750.Law Pertaining to Burglary of a Motor Vehicle
A person commits burglary of a motor vehicle if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft. TEX. PENAL CODE ANN. § 30.04(a) (Vernon 2003).Analysis
Appellant contends the evidence is insufficient to show that he (1) entered the vehicle, or (2) intended to commit theft. We address each argument respectively. Entry "Enter" means to intrude any part of the body or any physical object connected with the body. Id. § 30.04(b)(1)-(2). Any showing that the defendant penetrated the interior of the vehicle is sufficient to show the entry required for a burglarly conviction. Hopkins v. State, 864 S.W.2d 119, 120-21 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). Proof of entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976); Phillips v. State, 178 S.W.3d 78, 81 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). In this case, two witnesses saw a man matching appellant's description standing near the broken window of the truck. A large screwdriver and pliers were recovered from appellant's bicycle, and both tools were admitted into evidence. Officer Riner testified that such tools were often used to gain illegal entry to vehicles. When appellant was arrested, he had cuts on his hands and shards of glass in his hair. Officer Riner testified about the glass and cuts as follows:[Prosecutor]: You said you observed glass cuts on [appellant]. Where is it you observed these cuts?
[Riner]: On his hand in the finger area next to the cuticle.
[Prosecutor]: How do you know they were glass cuts?
[Riner]: Because they were — the size of the cuts and everything, it looks like when glass of a car breaks, it doesn't break in shards. It breaks in little square pieces, in the safety glass. And that's what it looked like, like something he nicked off when he hit it.
[Prosecutor]: Did you observe anything else on this person?
[Riner]: Little shards of glass in his hair.
[Prosecutor]: What did this indicate to you?
[Riner]: that he had broken glass on a vehicle and it had gotten in his hair.
[Prosecutor]: Based on your training and experience did you reach a conclusion as to whether or not he had been inside of that vehicle?
[Riner]: Yes, sir, I did.
. . . .
[Prosecutor]: What was that conclusion?
[Riner]: With the tools and glass on his hair, plus the cuts on his hands, I could tell he had just broken into a vehicle.
. . . .
[Prosecutor]: Again, those shards of glass, were they large chucks of glass?
[Riner]: No, very small. Small.
[Prosecutor]: what did that indicate to you?
[Riner]: Like he had — it was either when he hit the window itself or when he was looking underneath the seat, it rubbed off on his head.From this evidence, a rational jury could have concluded that appellant's hand, which appeared to have been cut by small shards of glass, or one of the tools recovered from appellant's bicycle penetrated the interior of the truck when the window was broken. The fact that appellant had small shards of glass in his hair is also evidence from which a rational jury could conclude that appellant's head penetrated through the window after it was broken. Intent to commit theft Appellant also argues that there is insufficient evidence to show that he had any intent to commit a theft. Appellant points out that "[n]othing was recovered from Appellant's person that belongs to the vehicle." Intent to commit theft may be inferred from the circumstances. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986), disapproved on other grounds by Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007); Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. 1979); Coleman v. State, 832 S.W.2d 409, 413 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd) (specific intent to burglarize motor vehicle can be inferred from circumstances). The jury is exclusively empowered to determine the issue of intent, and the events of a burglary may imply the intent with which the burglar entered. Moreno, 702 S.W.2d at 641; Joseph v. State, 679 S.W.2d 728, 730 (Tex. App.-Houston [1st Dist.] 1984, no pet.). Furthermore, property need not be taken for proof of intent to commit theft to be sufficient. See Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App. 1981). The element required by Section 30.04 of the Texas Penal Code is intent; "[t]he State is not required to prove any actual taking." Jones v. State, 482 S.W.2d 634, 636 (Tex. Crim. App. 1972); Thomas v. State, 919 S.W.2d 810, 814 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Even though nothing was taken from Menendez's truck, the jury nonetheless could have reasonably concluded that appellant possessed the requisite intent to commit theft. Two witnesses saw a man matching appellant's description standing near the truck with the broken glass. The man rode away when he heard the two women approaching. Minutes later, the women and an MD Anderson employee saw a man matching the description of the man the women had seen earlier riding away from the garage on a bicycle. UT Police caught up with the man on the bicycle and followed him to a nearby store. The man on the bicycle — appellant — admitted that he had been riding his bicycle through the Pressler garage, where the burglary occurred. Appellant had tools that could be used to break into a car tied to his bicycle, glass shards in his hair, and small glass cuts on his hands. Considering all the record evidence in the light most favorable to the verdict, a rational jury could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule points of error one and two.