Purcell
v.
State

Court of Appeals of Texas, Fifth District, DallasJun 28, 2005
No. 05-04-01372-CR (Tex. App. Jun. 28, 2005)

No. 05-04-01372-CR

Opinion Issued June 28, 2005. DO NOT PUBLISH. Tex.R.App.P.47.

On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80636-03. Affirmed.

Before Justices MORRIS, WHITTINGTON, and MAZZANT.


OPINION


Following his conviction for burglary of habitation, Douglas Purcell raises three issues on appeal complaining about the sufficiency of the evidence supporting his conviction. We conclude appellant's issues are without merit and affirm the trial court's judgment.

Factual Background

At the time it was burglarized, George Elizondo's house in Plano, Texas was one of the few completed homes in his development. When Elizondo was informed that the house had been burglarized, he returned home and found nothing missing. But he did find a crowbar and a pellet gun that did not belong to him, plus a collection of his possessions stuffed into the pillowcases on his bed. Elizondo's shotgun and .22 pistol had also been moved to his bed. The back door of the house had been pried open. Garren Bruce, the construction manager of the houses in Elizondo's development, explained that it is not uncommon for recently constructed but unoccupied homes to be burglarized. Bruce stated that in Elizondo's development, there had already been one occupied home burglarized, which was unusual. On the date of the offense, Bruce saw an aqua green Chevy Blazer in the development. He thought it might have been used in the previous burglary. He wrote down its license plate number and began to follow it. Eventually, the Blazer stopped. There were two men inside it. One got out of the Blazer and knocked on Elizondo's house's door. At that point, Bruce asked another construction manager to keep an eye on the suspicious Blazer, and he went to find the man who had seen a truck at the previous burglary. By the time Bruce returned to the scene with the man, the Blazer had moved to the alley behind Elizondo's house. Over a six-foot fence, Bruce could see two heads walking through the backyard of Elizondo's house. Bruce then called 911. He remained at the scene until police arrived. At that time, he saw two heads dart out of the house, out of the back gate, and across the alley. The men could not escape in their Blazer because a police car had blocked its exit from the alley. A police officer at the scene saw two men walk out of Elizondo's yard past a police car and then start running away. Canine officers were called to the scene, and a helicopter arrived as well. The event was covered by local television news. In the officer's opinion, at least one of the men was approximately six feet, six inches tall, and the other man was several inches shorter than that. Appellant's driver's license lists his height as six feet, eight inches. The officer testified that the Blazer's VIN number showed that it was registered to appellant and Josephine Arias. No one ever returned to collect the Blazer before it was impounded. Inside the Blazer, police found two cell phones, a diamond tester, a long pry or wrecking bar, a glass cutter, a can of mace, a police badge from the SMU police, and a hunting knife. The officer testified that these items were consistent with burglars' tools. Appellant's former girlfriend, Viengouthai Siharaj, testified that she recalled appellant telling her that he and his cousin, Glynn Purcell, burglarized a home in Plano. They had nearly been caught by police and had to hide in some bushes. He said that helicopters were called to the scene. He also told her that they had to leave the property they were trying to steal in the house. Siharaj testified that appellant drove a green Blazer before the burglary but she never saw it again after the burglary. Appellant told her it had been confiscated by police. Siharaj started dating appellant when she was a seventeen-year-old high school dropout working at Whataburger At the time, appellant was her twenty-five-year-old, married manager there. After they had dated for a couple of weeks, appellant moved in with Siharaj and her mother. The relationship ended after a little more than a year because Siharaj "wasn't ready to be settled down with just one person." She testified that the breakup was not particularly volatile. Within a week of the breakup, however, Siharaj's home with her mother was burglarized. She told the police that appellant might have been involved in the burglary. Siharaj testified that she has no hard feelings against appellant. Appellant's cousin, Glynn Purcell, testified for the State. He confirmed his conviction for a few theft offenses, three burglary of a habitation offenses, an escape offense, and one possession of a prohibited weapon. He claimed he remembered being chased by police and helicopters on the date of the complained-of burglary, but he could not recall whether appellant was also present. In a previous written statement, he had told police that he and appellant had broken into a house during the complained-of time and stole jewelry. In the statement, Purcell said that they had to leave the property behind at the house and they hid in the bushes. He said in the written statement that they had left a Blazer nearby. Purcell testified that he did not "particularly" remember giving the statement. He testified that he borrowed appellant's Blazer on several occasions and could not remember if he had borrowed it for the burglary in Plano. Purcell denied telling the prosecutor and the investigator the day before that he and appellant had committed the burglary, fled the police, and hid in the bushes. He testified that at the time of the offense he was doing "over a thousand dollars a week in cocaine" and his memory had suffered as a result. Purcell testified that he and appellant had talked on the phone a few months before appellant's trial and the day before it. To rebut Purcell's testimony, the State called an investigator with the district attorney's office to the stand. The investigator stated that the day before his testimony, he had sat in on an interview between the assistant district attorney and Glynn Purcell. The investigator did not believe Purcell was under the influence of an intoxicating substance at the time. During the interview, Purcell confirmed the information in his previous written statement to the police. In addition, he stated that he and appellant had gone to the burglary in appellant's Blazer carrying pry tools and a pellet gun. He recalled that they had put household items in pillow cases. He specifically recalled a shotgun and a pistol. When they realized the house was surrounded by police, he said, they left everything in the house and hid in close proximity to each other in the bushes. According to the investigator, Purcell "seemed particularly interested in the fact that helicopters were looking for them and they had made the news." When he was interviewed by the assistant district attorney, Purcell stated that he recalled giving the written statement to police. He never claimed that he was under the influence of an intoxicating substance at the time of his statement. To the investigator's knowledge, Purcell has never been charged with burglarizing Elizondo's house.

Discussion

All three of appellant's issues on appeal involve the sufficiency of the evidence to support his conviction. Appellant complains of the legal and factual sufficiency of the evidence in his first and second issues. In his third issue, appellant complains the evidence offered to corroborate the evidence of accomplice-witness Purcell is insufficient to connect appellant to the burglary. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In addition, a conviction may not be had upon the testimony of an accomplice unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). In this case, appellant's accomplice — Purcell — claimed he had no recollection of appellant committing the burglary with him. Nevertheless, this testimony was rebutted by Purcell's previous written statement to police that he and appellant had committed the offense and his admissions to the assistant district attorney that the two had committed the offense together. Purcell never testified that he was certain appellant was not with him during the burglary. In any event, the record contains sufficient evidence, aside from Purcell's testimony, to justify appellant's conviction. A vehicle registered in his name was used to commit the burglary. A man of appellant's height was seen exiting Elizondo's house. And appellant admitted to his girlfriend that he had committed a burglary in Plano. He explained to her that he had to hide in the bushes and leave his Blazer behind because the police arrived. He also told her there were helicopters at the scene. This information conformed to the other witnesses' recollection of the events. Despite Purcell's claim that he might have committed the burglary alone, two men were seen leaving Elizondo's house together. Viewing all the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction for burglary of a habitation. We further conclude any accomplice-witness testimony from Purcell was sufficiently corroborated. We resolve issues one through three against appellant. We affirm the trial court's judgment.