Opinion filed August 7, 2014




                                             In The


           Eleventh Court of Appeals
                                         __________

                                   No. 11-13-00017-CR
                                       __________

                            JOSE MARTINEZ, Appellant
                                                V.
                        THE STATE OF TEXAS, Appellee


                        On Appeal from the 238th District Court
                               Midland County, Texas
                           Trial Court Cause No. CR38530


                         MEMORANDUM OPINION
       Jose Martinez1 appeals his jury conviction of burglary of a building. See
TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). The jury assessed Appellant’s
punishment at confinement in the State Jail Division of the Texas Department of
Criminal Justice for a term of two years. We affirm.


       1
       We note that the name shown on the indictment is Jose Martinez, but that the name shown on the
judgment of conviction is Jose Martinez, Jr.
                                 I. Evidence at Trial
      Appellant was charged by indictment with burglary of a building. The
indictment alleged that, on or about December 9, 2010, Appellant intentionally and
knowingly entered a building without the consent of Shirley Martinez, an agent for
Ranchland Apartments, and attempted to commit and committed theft. Appellant
pleaded “not guilty” to the charge; the case proceeded to trial.
      Morris Taylor, a former maintenance worker at Ranchland Apartments in
Midland, Texas, testified that he was on duty on December 9, 2010, when he saw
Appellant walking with two copper pipes near the pool area of the apartment
complex. Taylor asked Appellant where he got the pipes, and Appellant stated that
he found them. Taylor noted that Appellant seemed jittery, nervous, and hostile.
Taylor also questioned Appellant’s explanation because Taylor had not seen any
pipes on the grounds that day.
      Although he could not say for sure, Taylor believed that Appellant had taken
the pipes from the boiler room of the apartment complex because Taylor had
stacked copper pipes in the boiler room that looked very similar to the pipes
Appellant was carrying. Taylor explained that he usually kept the boiler room
locked but that, on that day, the room was left unlocked to grant access to
maintenance personnel working on the boiler. Taylor stated that only employees
were allowed in the boiler room and that he did not give Appellant permission to
enter the boiler room or to take any pipes.
      After he confronted Appellant, Taylor informed Shirley Martinez, the
compliance monitor for Ranchland Apartments, about the suspected theft.
Appellant then returned one of the pipes.
      Martinez testified that she was working in the main office at Ranchland
Apartments on December 9, 2010, when Taylor ran into the office yelling about


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someone stealing property from the apartment complex. Martinez then followed
Taylor outside to speak with him and saw Appellant carrying a pipe.
        After Martinez told Appellant that the pipe belonged to the apartment
complex, he handed the pipe over to her. Appellant told Martinez that he found the
pipe outside, but Martinez doubted this explanation because she had not seen any
pipes on the grounds that day. Martinez noted that maintenance personnel later
verified that the pipe Appellant returned belonged to the apartment complex and
that the pipe was taken from the boiler room.
        Officer Eliud Amparan of the Midland Police Department testified that he
was dispatched to the Ranchland Apartments on December 9, 2010, to investigate
a theft report. After he arrived on the scene, Officer Amparan spoke with Taylor
and Martinez and determined that Appellant had stolen copper pipes from the
boiler room of the apartment complex. Officer Amparan then arrested Appellant
for the offense of theft.
        After he was arrested, Appellant told Officer Amparan that “it was not theft
because he gave them back.”         Officer Amparan assumed that Appellant was
referring to the copper pipes when Appellant made the comment. Officer Amparan
described Appellant’s behavior following his arrest as “out of control” and noted
that Appellant made several attempts to escape while being transported to the local
jail.
        Before Appellant took the stand, the trial court ruled that several of his prior
convictions were admissible for impeachment. These convictions were all from
2011 and were for the offenses of resisting arrest, theft by check, and terroristic
threat. Appellant did not object to the trial court’s ruling, and he acknowledged the
convictions during direct examination.




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      Appellant, a former resident of Ranchland Apartments, testified that he was
picking up beer cans 2 on the apartment grounds on December 9, 2010, when he
found two copper pipes by the fence surrounding the pool. Appellant believed the
pipes were used because they were dirty. As Appellant was walking back to his
apartment with the pipes, Taylor confronted him and accused him of taking the
pipes from the boiler room. Appellant denied the accusation and told Taylor that
he found the pipes on the apartment grounds.
      Appellant first denied that he had ever been in the boiler room at Ranchland
Apartments, but he later stated that he went into the boiler room and placed one of
the pipes there after Taylor accused him of theft. Appellant noted that he returned
the other pipe to Martinez.
      Appellant stated that he told Officer Amparan he had returned the pipes, but
Appellant denied making the statement that “it was not theft because [Appellant]
gave them back.” Appellant also denied the accusations against him and stated
that he was “not a thief.”
      At this point, the State argued that Appellant had opened the door to the
admission of his August 3, 1995 conviction for theft by check based on his claim
that he was “not a thief.” Appellant’s attorney argued that the 1995 theft-by-check
conviction was “too old,” that Appellant did not open the door, that the evidence
would be prejudicial, and that its prejudicial nature outweighed its probative value.
      The trial court ruled (1) that the 1995 theft-by-check conviction was
admissible because Appellant had opened the door when he testified that he was
not a thief but (2) that Appellant’s other remote convictions, such as DUI, assault
family violence, possession of marihuana, and resisting arrest, were not admissible
because Appellant’s statement that he “must have been a bad boy” in the past did
not open the door to these convictions. The trial court agreed with the State’s
      2
          Appellant explained that he was picking up the cans to sell them.

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contention that the 1995 conviction for theft by check was admissible based on
Appellant’s “thief” comment.
      Appellant then acknowledged the 1995 theft-by-check conviction during
recross-examination.    After Appellant finished his testimony, the trial court
instructed the jury that the prior conviction was to be considered only in
determining whether Appellant was telling the truth.
                                II. Issues Presented
      In two issues on appeal, Appellant contends (1) that the evidence was legally
and factually insufficient to sustain his conviction and (2) that the trial court erred
when it admitted his 1995 conviction for theft.
                               III. Standard of Review
      We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under that standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
         We review a trial court’s decision to admit evidence for an abuse of
discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial
court abuses its discretion only when its decision lies outside the zone of
reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim.
App. 2010).




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                                    IV. Analysis
      A. Sufficiency of the Evidence
      Appellant contends in his first issue that the evidence at trial was legally and
factually insufficient to sustain his conviction for burglary of a building.       In
support of his contention, Appellant points to the fact that the State presented no
direct evidence that he removed the pipes from the boiler room.
      The indictment alleged that Appellant committed the offense of burglary of a
building when he entered a building at Ranchland Apartments, without consent,
and committed or attempted to commit theft. A person commits the offense of
burglary “if, without the effective consent of the owner, the person enters a
building or habitation and commits or attempts to commit a felony, theft, or an
assault.” PENAL § 30.02(a)(3). Burglarious entry may be proven by circumstantial
evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. 1978).
      A theft is committed when a person “unlawfully appropriates property with
intent to deprive the owner of property.” PENAL § 31.03(a) (West Supp. 2013). A
defendant’s unexplained possession of property recently stolen in a burglary
permits an inference that the defendant committed the burglary. Rollerson v. State,
227 S.W.3d 718, 725 (Tex. Crim. App. 2007). The shorter the period of time
between the taking of the property and the defendant’s possession of the property,
the stronger the inference that the defendant knew the property was stolen.
Naranjo v. State, 217 S.W.3d 560, 571 (Tex. App.—San Antonio 2006, no pet.).
      If the accused explains his possession of the stolen property at the time of
his arrest, the record must demonstrate that the account is false or unreasonable.
Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). Whether the
accused’s explanation is false or unreasonable is an issue to be resolved by the trier
of fact. Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no pet.).


                                          6
      In this case, the State was not required to provide the jury with direct
evidence of Appellant’s guilt of the charged offense. See Gilbertson, 563 S.W.2d
at 608. The circumstantial evidence presented to the jury supported the theory that
Appellant entered the boiler room of Ranchland Apartments and took two copper
pipes from the room without the permission of apartment personnel. Although
Appellant presented the jury with an alternative explanation of how he acquired the
pipes, his story contained several inconsistencies, and the jury could disbelieve his
testimony. See Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998)
(recognizing the factfinder is the exclusive judge of each witness’s credibility and
the weight to be given each witness’s testimony); Adelman v. State, 828 S.W.2d
418, 421 (Tex. Crim. App. 1992) (recognizing the trier of fact may accept or reject
any or all of the testimony of any witness).
      Having reviewed the evidence in the light most favorable to the verdict, we
hold that a rational trier of fact could have found beyond a reasonable doubt that
Appellant committed the offense of burglary of a building. Appellant’s first issue
is overruled.
      B. Admission of Prior Conviction
      Appellant argues in his remaining issue that the trial court erred when it
admitted his 1995 conviction for theft by check. Because Appellant objected to the
State’s use of the prior convictions, he has preserved this issue for appeal. See
TEX. R. APP. P. 33.1(a)(1). Rule 609(a) of the Texas Rules of Evidence provides
that evidence of a witness’s prior conviction may be admitted for impeachment
purposes if the crime was a felony or a crime of moral turpitude and the trial court
determines that the probative value of the conviction outweighs its prejudicial
effect. TEX. R. EVID. 609(a). Such evidence is not admissible if more than ten
years have passed from the date of the conviction, unless the court determines that
the probative value of the conviction substantially outweighs its prejudicial effect.
                                          7
TEX. R. EVID. 609(b). But there is an exception to Rule 609 when the defendant
“opens the door” to previously inadmissible evidence. Delk v. State, 855 S.W.2d
700, 704 (Tex. Crim. App. 1993).
      Regardless of the provisions of Rule 609, an exception to the rule arises
when a witness testifies regarding his past conduct and leaves the false impression
that he has never been arrested, charged, or convicted of any offense. Id. When a
witness creates a false impression regarding his law-abiding behavior, he “opens
the door” to his criminal history. Id.; Prescott v. State, 744 S.W.2d 128, 131 (Tex.
Crim. App. 1988). When making a determination as to whether the witness has
“opened the door” to a showing of his prior criminal record, it is important to
examine the answer given in relation to the question asked. Delk, 855 S.W.2d at
704. It is also important to determine how broadly the question is to be interpreted.
Id.; Sirois v. State, No. 11-06-00240-CR, 2008 WL 1893291 (Tex. App.—Eastland
Apr. 24, 2008, pet. ref’d) (mem. op., not designated for publication).
      Appellant testified at trial and stated that he was not a thief. This left a false
impression with the jury, and the State was allowed to correct the false impression
with his 1995 conviction of theft by check. The trial court’s decision was not
outside the zone of reasonable disagreement when it ruled that the 1995 theft-by-
check conviction was admissible because Appellant had opened the door.
Appellant’s second issue is overruled.
                               V. This Court’s Ruling
      We affirm the judgment of the trial court.


August 7, 2014                                              MIKE WILLSON
Do not publish. See TEX. R. APP. P. 47.2(b).                JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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