      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00648-CR



                                    Kenneth Sobaski, Appellant

                                                   v.

                                    The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
         NO. 5040081, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found appellant Kenneth Sobaski guilty of burglary of a habitation, for which

the court assessed a ten-year prison sentence. See Tex. Pen. Code Ann. § 30.02 (West 2003).

Appellant contends that the evidence is legally and factually insufficient to sustain the guilty verdict.

He also asserts that he was denied a fair opportunity to litigate the issues raised in his motion to

suppress evidence and that his trial counsel was ineffective. We overrule these contentions and

affirm the judgment of conviction.

                Bryan Bargsley testified that he owns a lake house on Lake Travis. On February 20,

2004, he arrived at the house to find that someone had entered his property during the previous week

and stolen a large amount of property. Among the items stolen were television sets, air conditioners,

pellet guns, a microwave oven, and a neon sign taken from the lake house; a boat motor, fishing
equipment, and auto supplies taken from several outbuildings; a refrigerator, stereo, and seats taken

from a motor home parked on the lot; and a boat and trailer that were also on the property. Two

sheriff’s deputies, Michael Anderson and William Evans, responded to Bargsley’s call reporting the

burglary.

               While the deputies were processing the crime scene, Bargsley began driving around

the neighborhood looking for his stolen property. About five minutes away from his house, outside

a mobile home on Oak Forest, he saw from the street what he believed was his boat motor leaning

against a tree. Two men were standing outside the residence, one of whom was identified as

appellant. Wanting to get a closer look at the boat motor, Bargsley parked in the street and walked

up to appellant. Bargsley asked him if the boat motor, which he had visually confirmed was his, was

for sale. Appellant told him it was not. As Bargsley was talking to appellant, he noticed his boat

and trailer parked nearby. He also saw the seats and refrigerator that had been stolen from his motor

home inside a red van parked outside the trailer house. Bargsley returned to his lake house and told

the deputies what he had seen.

               The deputies drove to the Oak Forest residence. They saw one man, later identified

as Leslie Snow, standing in the yard. They approached Snow with their weapons drawn and

temporarily handcuffed him while they verified his identity. While they were dealing with Snow,

a woman who identified herself as Wanda Knox came to the door of the mobile home. The deputies

testified that they did not point their weapons at Knox, but they did ask her to remain on the porch

while they checked her identity. Knox told the deputies that she lived on the property with appellant,

who is her son.



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               The deputies told Knox why they were there. They testified that she was very

cooperative and expressed no opposition to Bargsley returning to claim his property. The deputies

called Bargsley, who returned to the Oak Forest address and began identifying his stolen property.

Deputy Anderson testified that he made a list four pages long. Among the items identified by

Bargsley that night were the television sets, pellet rifles, microwave oven, and neon sign taken from

inside his lake house.

               Knox told the deputies that appellant had left in his red van about ten minutes before

they arrived. The van was found abandoned three miles away. Property stolen from Bargsley’s lake

house was found in the van during a search conducted with appellant’s written consent following his

arrest.

               Appellant contends that the evidence is legally and factually insufficient to sustain

a conviction for burglary. He points to the absence of any evidence, such as fingerprints, placing him

inside Bargsley’s residence. He asserts that one of the other persons present when the stolen

property was found could have been the burglar.

               When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979)

(legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal

sufficiency); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency).

In a legal sufficiency review, all the evidence is reviewed in the light most favorable to the verdict;

it is assumed that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. Griffin, 614 S.W.2d at 159 (citing

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Jackson, 443 U.S. at 318-19). In a factual sufficiency review, all the evidence is considered equally,

including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v.

State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). Although due deference still must

be accorded the fact-finder’s determinations, particularly those concerning the weight and credibility

of the evidence, the reviewing court may disagree with the result in order to prevent a manifest

injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The evidence will be deemed

factually insufficient to sustain the conviction if the proof of guilt is too weak or the contrary

evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d

at 484-85; see Johnson, 23 S.W.3d at 11.

               In a prosecution for burglary, the unlawful entry can be proven through circumstantial

evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. 1978). When there is

independent evidence of a burglary, the defendant’s unexplained personal possession of the recently

stolen property will support an inference of guilt. Tabor v. State, 88 S.W.3d 783, 786 (Tex.

App.—Tyler 2002, no pet.); see Hardesty v. State, 656 S.W.2d 73, 76-77 (Tex. Crim. App. 1983).

In this cause, there is no dispute that Bargsley’s lake house was burglarized. Property taken from

the house was found in appellant’s van a few days after the burglary was discovered. There is no

evidence that appellant had an explanation for his possession of this property. Although it is possible

that Snow or some other person was the burglar, it was for the trier of fact to weigh this possibility

against the fact of appellant’s possession of the stolen property. Applying the standards outlined

above, we hold that the evidence is legally and factually sufficient to support the jury’s verdict

convicting appellant of burglary of a habitation. Points of error one and two are overruled.



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                Appellant’s third point of error is that he was denied “a full and fair opportunity to

litigate his suppression issues” in violation of his due process and statutory rights. Appellant filed

a motion to suppress evidence after the jury had been selected and brought it to the court’s attention

after testimony began. Plainly, appellant is in no position to argue that he should have been afforded

a pretrial hearing on the motion. See Tex. Code Crim. Proc. Ann. art. 28.01 (West 1989). In fact,

even if the motion to suppress had been filed earlier, the trial court had the discretion to consider the

motion during trial on the merits instead of at a pretrial hearing. Calloway v. State, 743 S.W.2d 645

(Tex. Crim. App. 1988).

                Bargsley was the State’s first witness. When he began to testify about his search for

his stolen property, appellant objected and drew the court’s attention to the suppression motion. The

court permitted defense counsel to question Bargsley outside the jury’s presence. During this voir

dire examination, counsel adduced the fact that Bargsley is a Department of Public Safety employee

(but not a peace officer), that he did not have a search warrant, and that he did not ask permission

before entering onto the Oak Ridge property. Appellant then articulated three grounds for

suppressing the evidence regarding the discovery of the stolen property: Bargsley was a state

employee and therefore his conduct was state action under the Fourth Amendment; he did not have

consent to enter; and his entry constituted an unlawful trespass. The court announced that it was

overruling the motion to suppress. Counsel told the court that he had additional witnesses he wished

to call on the issue of consent. The court told counsel, “You may proffer them when you choose.”

During appellant’s subsequent cross-examination of the deputies, he established that they did not

have search warrants when they went to the Oak Ridge address. He also adduced testimony from

Knox to the effect that her consent to the officers’ presence was not voluntary. She explained, “I was

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under the impression that they already knew that Kenneth had done this. I was under the impression

that they already knew everything, and I didn’t know anything.”

               After both sides rested, appellant asked the court to instruct the jury to disregard

unlawfully seized evidence. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005). The request

was refused. An article 38.23 instruction is required only if there is a factual dispute as to whether

the evidence was lawfully obtained. Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). If

no violation of the law is shown, the statute does not apply. Mayfield v. State, 124 S.W.3d 377, 378

(Tex. App.—Dallas 2003, pet. ref’d).

               Appellant asserts in his brief that he was “absolutely entitled” to an article 38.23

instruction, but he does not explain why. The only arguable factual dispute regarding the discovery

and recovery of Bargsley’s stolen property had to do with whether Knox consented to the entry onto

her property. Consent is a recognized exception to the Fourth Amendment warrant requirement.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). But appellant makes no effort to demonstrate

that he had a reasonable expectation of privacy in the unenclosed front yard of his mother’s

residence, in which property stolen from Bargsley could be seen from the street. And Bargsley was

a private citizen to whom the Fourth Amendment does not apply.1 Walter v. United States, 447 U.S.

649, 656 (1980).

               Under article 38.23, evidence obtained by either an officer or a private citizen in

violation of a state statute is inadmissible. See State v. Johnson, 939 S.W.2d 586, 588 (Tex. Crim.



   1
     The suggestion that Bargsley’s status as a state employee made his conduct state action was
patently without merit. There is no evidence that he was acting as a state agent when he went
looking for his stolen property.

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App. 1996). There was, however, no evidence that Knox’s yard was fenced or gated, or that either

Bargsley or the deputies had notice that their entry into the yard to speak to the persons standing

there was forbidden. Thus, there was no issue for the jury regarding trespass. See Tex. Pen. Code

Ann. § 30.05 (West Supp. 2005). Finally, we note that there is no suggestion in the record or in

appellant’s brief that the search of his van and the recovery of stolen property found therein was

unlawful. It is undisputed that this search was conducted with appellant’s written consent.

               Appellant did not timely seek a pretrial determination of his motion to suppress and

the record does not support his contention that he was entitled to an article 38.23 instruction. His

complaint that he was denied a fair hearing of his suppression issues is without merit. Point of error

three is overruled.

               Finally, appellant contends that his trial counsel rendered ineffective assistance. To

prevail on this claim, appellant must show that counsel made such serious errors that he was not

functioning effectively as counsel and that these errors prejudiced the defense to such a degree that

he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez

v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999). We must indulge a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance. See Jackson

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, any

allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

In cases such as this one in which the issue of counsel’s performance was not the subject of a motion

for new trial, the record on direct appeal is undeveloped and is rarely adequate to reflect the motives

behind trial counsel’s actions. Id.

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                Appellant faults trial counsel for having failed to object to the testimony regarding

the theft of property not located in Bargsley’s lake house. He contends that because he was on trial

for burglary of a habitation, this testimony was inadmissible extraneous misconduct evidence. See

Tex. R. Evid. 404(b). But it would not have been professionally irresponsible for counsel to believe

that this testimony was relevant to identify appellant as the burglar by tying him to other property

stolen at the same time. Or perhaps counsel considered the testimony to be same transaction

contextual evidence. See Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991). The failure

to make a rule 404(b) objection cannot, on this record, be considered an unprofessional act.

                Appellant complains that his trial counsel should have filed a pretrial motion to

suppress and that he waived appellant’s entitlement to an article 38.23 instruction. The latter

contention is easily dismissed because the instruction issue was preserved for appeal. And counsel’s

decision to wait until trial to challenge the admissibility of the evidence is matter of trial strategy that

this Court will not second-guess on a silent record.

                Appellant’s last complaint is that counsel failed to understand that the unexplained

possession of property recently stolen in a burglary will support an inference of guilt in the burglary.

Appellant notes that his attorney argued to the jury that he had been shown only to have possessed

the stolen property, and thus was not guilty of burglary. He also points to counsel’s objection to the

prosecutor’s jury argument regarding unexplained possession of stolen property on the ground that

this was a comment on appellant’s failure to testify. Perhaps, however, counsel was fully aware of

the inference arising from the unexplained possession of stolen property, but hoped that he could

persuade a lay jury to find appellant not guilty in the absence of direct evidence that he entered the

burglarized habitation. And in a related matter also mentioned by appellant, counsel’s objection to

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an instruction on theft as a lesser included offense may have been a strategic decision to go for an

acquittal in light of the arguably thin evidence regarding entry.

               Appellant has not demonstrated that his trial counsel’s performance was outside the

broad range of reasonable professional assistance. Point of error four is overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: April 27, 2006

Do Not Publish




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