No. 05-03-01259-CR.
Opinion Filed February 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-72690-JU. Affirm.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
Opinion By Justice FITZGERALD.
Ernest Abeodum Spencer-Auber waived a jury trial and pleaded not guilty to violation of a protective order, with two prior convictions for violating protective orders. The trial court found appellant guilty, sentenced him to five years confinement, and assessed a $2000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
Bernice Karama, the complainant, and appellant dated for two years. After they broke up, Karama obtained a protective order against appellant on October 30, 2001. Karama testified that although the protective order was effective for two years, appellant continually telephoned her at work and at home. At 10:30 p.m. on May 15, 2002, Karama was in the bedroom of her second-floor apartment when she heard her car alarm go off. Karama looked out the window and saw appellant looking inside the trunk of her car. Karama's car was parked at the bottom of the steps that lead up to her front door. Karama testified she recognized appellant's profile because the car was parked under outside lights, and she clearly saw appellant's face when he closed the trunk. Karama watched appellant for about one minute, then appellant ran away from Karama's car and toward the fence that was behind him. Karama called the police. When the police arrived, Karama found that the trunk lock was not broken and nothing was missing. Karama testified she believed appellant used a key to open the trunk because in September 2001, appellant had taken Karama's keys from her and did not return them until the next day. Karama testified her car was dark blue, and she did not manually turn off the car alarm because it turned off on its own. Chioma Opara, Karama's roommate, testified she heard the alarm on Karama's car go off at 10:30 p.m. Both she and Karama looked out the front window down onto Karama's car. Opara testified she saw appellant standing at the back of Karama's car with the trunk open. While Karama called police, Opara stayed at the window watching appellant. Opara testified she had seen appellant before and knew who he was, and she knew Karama had obtained a protective order against appellant. Opara testified she clearly saw appellant's face because at one point appellant looked up toward their window and the parking lot lights illuminated his face. After appellant looked up toward the window, he abruptly shut the car's trunk and ran away toward the left. Opara testified Karama's car was a green color, and Karama turned off the car alarm before police arrived. Appellant's sisters, Flora and Evette Spencer-Auber, testified that appellant was at home with them the entire evening. Flora testified that several family members, including appellant, were at their mother's house watching a weekly television program which began at nine o'clock. Appellant was living with his mother at the time. Flora testified appellant did not have a car and did not leave the house that evening. Evette testified she picked up her son from her mother's house daily, and family members usually gathered at her mother's house. Evette visited with family members while they watched a weekly television program, and she saw appellant near the kitchen playing with his daughter. Evette testified she left at 11:00 p.m. to go to her own home a few blocks away, and appellant was at their mother's house when she left. Appellant testified he did not go to Karama's apartment or look inside her car trunk, and he never left his mother's house that evening. Appellant testified he got home from work at 7:00 p.m. and did not leave until the next day. Appellant denied taking Karama's keys and keeping them overnight in September 2001. Appellant testified he took Karama's purse with the keys inside, but he gave the purse to his sister. Appellant's sister returned the purse and keys to Karama. Appellant testified he knew about the protective order and, in April 2002, he pleaded guilty to two violations of the protective order. Appellant testified he drove a green Honda until November 2002, when he was arrested on this case and the car was repossessed. Applicable Law
In reviewing the legal sufficiency of the evidence, we examine 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 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The standard is the same for both direct and circumstantial evidence cases. See Edwards v. State, 813 S.W.2d 572, 575 (Tex. App.-Dallas 1991, pet. ref'd). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In performing this review, we are to give due deference to the fact finder's determinations. Id. at 8-9; Clewis v. State, 922 S.W.2d 126, 136 (Tex.Crim.App. 1996). The State was required to prove appellant knowingly or intentionally, in violation of an order issued under section 6.504 or chapter 85 of the Family Code, went to or near the residence of a protected individual, and that appellant had previously been convicted two or more times under this section. See Tex. Pen. Code Ann. § 25.07(a)(3)(A), (g) (Vernon Supp. 2004). Discussion
Appellant argues the evidence is legally and factually insufficient because Karama and Opara gave conflicting testimony, while the defense witnesses consistently stated appellant never left his house that evening. Thus, appellant argues, there was no evidence he was at or near Karama's apartment. The State responds the evidence is both legally and factually sufficient to show appellant intentionally went near Karama's apartment. We agree with the State. There was conflicting evidence presented in this case. Karama and Opara testified they saw appellant standing at the trunk of Karama's car at 10:30 p.m. The car was parked in front of Karama's apartment and was illuminated by lights in the parking lot. Appellant and his sisters testified that appellant was home all evening with other family members. Karama testified appellant ran back toward the fence, the car alarm went off by itself, and the color of her car was blue; Opara testified appellant ran toward the left, the car alarm was turned off by Karama, and Karama's car was green. The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and resolved the conflicts in the testimony. See Obigbo v. State, 6 S.W.3d 299, 305 (Tex. App.-Dallas 1999, no pet.). Having reviewed all of the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the convictions. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.