Court of Appeals of Texas, Fifth District, DallasMay 3, 2010
No. 05-08-01369-CR (Tex. App. May. 3, 2010)

No. 05-08-01369-CR

Opinion Filed May 3, 2010. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-82795-07.

Before Justices RICHTER, LANG-MIERS, and MYERS.


Opinion By Justice LANG-MIERS.

A jury convicted John Patrick Wallace of burglary of a habitation. After appellant pleaded true to two prior burglary of a habitation convictions, the jury assessed punishment at thirty-six years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.


On September 16, 2007, Dana Starr, the complainant, picked up her children from Sunday school and returned home at 11:30 a.m. When she drove into her garage, which is attached to her house, she left the door up and went into the house. Starr testified her backyard is surrounded by a brick wall, and the driveway has an iron gate across it to block entry from the alley. The gate opens with a remote control device. Starr testified she was inside the house for about forty minutes then she returned to her car. She immediately noticed her wallet, which she kept in the console for convenience, was missing. Starr went back in the house to look for the wallet, then returned to the garage after a few minutes. She saw that her husband's vehicle had its doors ajar, and a radar detector was missing from the vehicle. Starr immediately called the credit card company. She learned one of her credit cards had already been used twice, at a gas station and at a Walgreens. Starr called the police. A Dallas police officer came to Starr's home. A short time later, a Plano police officer telephoned Starr and said he had her wallet. Starr went to the Plano jail and retrieved her wallet at 2:00 p.m. Cash and one credit card were missing from the wallet. Starr testified she did not give anyone permission to enter her garage and take property from her vehicle, and that whoever stole her property would either have had to jump over the brick wall or open the iron gate to gain entry into the yard and garage. At trial, Starr identified a credit card issued in her name and a radar detector as property belonging to her and her husband. On September 16, 2007, Plano police officer Joel Scott made a traffic stop on a vehicle driven by appellant for having no front license plate and making an unauthorized U-turn. Appellant was in the driver's seat, and a man later identified as Marsalis Hutchinson was in the front passenger seat. Scott testified that when he first noticed the vehicle, it was approximately two blocks from a Walgreens in the 4000 block of Preston Road. After Scott activated his flashing lights to pull over the vehicle, appellant slowed down but did not stop immediately. Scott saw appellant and Hutchinson "fumbling with something." Appellant drove "a quater mile" before he stopped even though Scott had activated his flashing lights. When Scott asked appellant for identification, appellant gave Scott an Oklahoma driver's license in the name of "John Gatharie." Scott testified he could not verify the license because his computer was not working properly at the time. He asked appellant for paperwork that showed he owned the vehicle. Appellant reached into the glove compartment and grabbed a receipt from a motor company in the name of "John Wallace." When Scott asked appellant who John Wallace was, appellant said he was both John Wallace and John Gatharie because "his mother was a Wallace and his father was a Gatharie." Scott testified he became suspicious of appellant's nervous behavior and vague answers and called for a backup officer. When the second officer arrived, Scott got appellant out of the vehicle and arrested him for traffic violations, including no driver's license, no insurance, and no front license plate. When he searched appellant, Scott found $494 in cash and various cards in appellant's pants pockets, including a credit card issued to Dana Starr, five $100-American Express gift cards; two $50-American Express gift cards; a $50-Marriott gift card, a $100-Marriott travel card; a $25-Cold Stone Creamery gift card, and several gift cards from stores and restaurants without a designated amount. Scott asked appellant who Dana Starr was; appellant said he did not know. Scott then searched appellant's vehicle and found the following items: identification with appellant's name and picture on it, a woman's wallet under the driver's seat that contained Starr's identification and several credit cards, a pair of black gloves between the driver's seat and center console, a new radar detector, and two credit union checks with an address printed on them that did not match appellant's address. Scott testified he called the police dispatcher to obtain a telephone number for Starr. He learned that a Dallas police officer was headed to the Starr residence to take a burglary report. Scott telephoned Starr and learned one of her credit cards had been used at a nearby Walgreens. Scott sent the backup officer to Walgreens to look at possible surveillance footage of the transaction. The officer obtained a surveillance videotape that showed a person who resembled appellant purchasing something at a front register. The purchase occurred at 12:01 p.m. on September 16, 2007. Scott testified the clothing of the person using the credit card at the Walgreens matched the clothing appellant had on at the scene of the traffic stop. Plano police officer Steven Sanders testified he was the second officer to arrive at the traffic stop. He briefly talked with Hutchinson, the front seat passenger, while Scott made appellant get out of the vehicle and then arrested him. After a few minutes, Sanders went to a nearby Walgreens to investigate whether appellant was the same person who used Starr's credit card there. Sanders talked with the store manager and viewed surveillance videotape of transactions at the front cash registers. Sanders testified that although he could not see the person's face on the videotape, he saw a man at the register whose clothing and distinctive hat matched the clothing and hat appellant was wearing at the time of the traffic stop. The videotape was admitted into evidence and played to the jury as Sanders pointed out that appellant stood at the register and used Starr's credit card at 12:01 p.m. Appellant did not testify or present any evidence during the guilt/innocence phase of the trial.


In two issues, appellant contends the evidence is legally and factually insufficient because there is no eyewitness testimony, no eyewitness identification, and a useless videotape because you cannot see the face of the person who used Starr's credit card. Appellant asserts there is no evidence he was physically present at the time the offense was committed or that he and Hutchinson were acting together to commit the offense. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). To obtain a conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly, without the effective consent of Dana Starr, the owner, entered a habitation with the intent to commit theft, attempted to commit theft, or committed theft. See Tex. Penal Code Ann. § 30.02(a) (Vernon 2003). The jury was instructed it could find appellant guilty as a principal actor to the offense, guilty as a party to the offense, or not guilty. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). A person is criminally responsible as a party if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids the other person in committing the offense. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.). The jury heard testimony that there was less than forty minutes between the time Starr discovered her wallet missing and when officers discovered Starr's wallet and credit cards in appellant's possession. Starr's wallet was found under the driver's seat where appellant had been sitting, and her credit card was found in appellant's pocket. Appellant offered no explanation to the officers as to why he possessed Starr's stolen property. Unexplained possession of property recently stolen in a burglary permits an inference that an accused is the person who committed the burglary. See Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). Moreover, the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury could have reasonably concluded that appellant was the person who entered Starr's habitation without her consent and stole her property. Viewed under the proper standards, we conclude the unexplained possession of property recently stolen in a burglary in conjunction with the fact that appellant was wearing the same clothing as the person who was captured on store surveillance videotape using Starr's credit card are sufficient to support his burglary of a habitation conviction. See Poncio, 185 S.W.3d at 905. We resolve appellant's two issues against him. We affirm the trial court's judgment.