                            NUMBER 13-10-00302-CR

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI—EDINBURG
 ____________________________________________________

JOSE GUTIERREZ,                                                              Appellant,

                                              v.

THE STATE OF TEXAS,                                                          Appellee.


                      On appeal from the 214th District Court
                            of Nueces County, Texas
 ____________________________________________________

                            MEMORANDUM OPINION

                  Before Justices Benavides, Vela, and Perkes
                   Memorandum Opinion by Justice Perkes

       A jury convicted appellant, Jose Gutierrez, of the offense of burglary of a habitation.

See TEX. PENAL CODE § 30.02 (West 2003). The trial court assessed punishment at five

years confinement in the Institutional Division of the Texas Department of Criminal Justice.

In a single issue, Gutierrez contends the evidence is legally insufficient to establish that he

committed the offense of burglary of a habitation. We affirm.
                                            I. BACKGROUND

      A. State’s Evidence

      The complainant, Ruperto Garcia (―Mr. Garcia‖) testified that around 2:00 or 2:30

a.m. on March 20, 2010, he arrived home to find his home being burglarized. Mr. Garcia

saw Marvin Sanchez1 and Gutierrez exit his home, and enter into a Toyota pickup truck

which was parked in front of the house. Mr. Garcia saw that Gutierrez was carrying some

DVDs and saw him place them in the back of the Toyota pickup truck. Mr. Garcia followed

the truck for a few blocks, obtained the license plate number, and returned home to call the

police. Mr. Garcia reported to the police that his house was burglarized and told the police

the truck’s license plate number. Mr. Garcia testified that his bedroom window had been

opened, the blinds were scattered, property was strewn throughout the house, and that he

saw some DVDs in the front yard. Mr. Garcia testified that even though the light switch

remained on, it was apparent that the light bulb in the front porch was unscrewed to an off

position because a child’s chair was placed directly beneath it to serve as a step stool to

reach the bulb. Mr. Garcia testified that some of the property missing from his house

included a laptop computer, a DVD player, and several DVDs, including ―Dora, the

Explorer.‖

      The police department issued a dispatch regarding the burglary and gave a

description of the Toyota pickup truck and its license plate number. Officer Lee Galloway

responded to the dispatch and drove to Mr. Garcia’s residence. Officer Galloway testified

that he found some DVDs in Mr. Garcia’s yard. He further testified that a bedroom window

was halfway open and that the porch light was off, with a chair underneath it.


      1
          Marvin Sanchez was also indicted for this offense, but was not tried together with appellant.
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       Officer Gabe Garcia testified that he responded to the dispatch by driving to 129

Mohawk, the residence where the truck was registered.          Upon arrival, Officer Garcia

shined a spot light on a Toyota pickup truck and confirmed the license plate matched the

license plate number identified in the police dispatch. Officer Garcia saw Gutierrez exit the

truck’s passenger side with an object in his hand and hide behind a brick pillar. He

ordered Gutierrez to move from behind the pillar, after which he was handcuffed. Officer

Garcia testified that Officer Galloway told him that some children’s DVDs were stolen from

Mr. Garcia’s home. Officer Garcia looked inside the Toyota pickup truck and saw a child’s

DVD entitled ―Dora, the Explorer,‖ inside the truck.      Thereafter, Mr. Garcia identified

Gutierrez during a field identification as one of the men he saw burglarizing his home, and

stated that Gutierrez was wearing the same clothing as he did when he saw Gutierrez

leaving his home.

       Detective Trujillo testified during cross-examination that Marvin Sanchez, the other

person identified by Mr. Garcia on the night of the burglary, stated Gutierrez was involved

in the burglary.

       B. Defendant’s Evidence

       Gutierrez did not testify at trial. Gutierrez’s grandmother, with whom he lives,

testified that Gutierrez was home at the time of the burglary. Officer Garcia testified on

cross-examination that he did not check the Toyota pickup truck to see if it had been

recently driven. Officer Kelly Martinez testified on cross-examination that no elimination

fingerprints were taken. Mr. Garcia testified on cross-examination that he was burglarized

about two and a half weeks prior to this incident, and that he had concluded Gutierrez was

involved in that burglary.

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                                II. STANDARD OF REVIEW

       When reviewing legal sufficiency, the court must ask itself whether, after reviewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt— not whether

it believes the evidence establishes the verdict beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 318–19 (1979). The jury is the sole judge of a witness's credibility

and the weight to be given the testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008). The reviewing court should not act as a thirteenth juror that substitutes

its own opinion of the credibility and weight of the evidence for that of the fact-finder's.

See Brooks v. State, 323 S.W.3d 893, 905 (Tex. Crim. App. 2010). Instead, the reviewing

court must resolve inconsistencies in testimony in favor of the verdict and then ask

whether a rational trier of fact could have found the elements of the crime beyond a

reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

       To measure legal sufficiency, we use the elements of the offense as defined by a

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. A person commits the offense of burglary if, without the

effective consent of the owner, he or she enters a habitation with intent to commit theft.

TEX. PENAL CODE ANN. § 30.02 (a)(1) (West 2003).

       It is not necessary that the evidence directly prove the defendant's guilt;

circumstantial evidence is as probative as direct evidence in establishing the guilt of the

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actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kuciemba v. State, 310 S.W.3d 460, 462

(Tex. Crim. App. 2010). A fact-finder may support its verdict with reasonable inferences

drawn from the evidence, and it is up to the fact-finder to decide which inference is most

reasonable. Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009). The State may

show entry by circumstantial evidence or inference. Gilbertson v. State, 563 S.W.2d 606,

608–09 (Tex. Crim. App. 1978).

                                          III. ANALYSIS

      Mr. Garcia identified Gutierrez as one of the two persons that he saw leaving his

house in the early morning hours of March 20, 2010. He described the vehicle and license

plate number. Officer Garcia identified Gutierrez as the person who exited the described

Toyota pickup truck that he saw at Gutierrez’s grandmother’s home, and who immediately

hid behind a brick pillar. An eyewitness’s testimony identifying the defendant is sufficient,

standing alone, to support the conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.

Crim. App. 1971).    Further, the defendant’s hiding and efforts to avoid apprehension

immediately after the offense likewise create an inference of guilt. See Hernandez v.

State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997); Burks v. State, 876 S.W.2d 877, 888

(Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114 (1995).

      Additionally, Mr. Garcia reported he was missing, among other things, a children’s

DVD entitled ―Dora, the Explorer.” A copy of this DVD was found in the Toyota pickup

truck. Gutierrez provided no explanation for his possession of this DVD. A defendant’s

unexplained possession of property recently stolen in a burglary permits an inference that

the defendant is the one who committed the burglary. Rollerson v. State, 227 S.W.3d 718,

                                             5
725 (Tex. Crim. App. 2007) (citing Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App.

2006)). A fact finder is entitled to draw multiple reasonable inferences as long as each

inference is supported by the evidence presented at trial. Hooper v. State, 214, S.W.3d 9,

15 (Tex. Crim. App. 2007).

      With respect to Gutierrez’s alibi witness, the jury, as the trier of fact, is the sole

judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v.

State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or

disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986). We presume that the trier of fact resolved conflicts in favor of

conviction. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In reviewing all of

the evidence presented at trial in the light most favorable to the verdict, we find that it

proves beyond a reasonable doubt that Gutierrez committed the crime for which the jury

found him guilty. We overrule the sole issue for review.

                                       III. CONCLUSION

      We affirm the trial court’s judgment.

                                                   ______________________________
                                                   GREGORY T. PERKES
                                                   Justice


Do not publish. See TEX. R. APP. P. 47.2(b).

Delivered and filed the
22nd day of August, 2011.




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