                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00222-CR



          TAMMY KAY TAYLOR, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1423993




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                            MEMORANDUM OPINION
           After a bench trial, Tammy Kay Taylor was found guilty of burglary of a habitation and

sentenced to fifteen years’ confinement.

           On appeal, Taylor contends that the trial court erred (1) by admitting testimony regarding

an extraneous offense, and (2) by making a Hardesty1 inference.

           We affirm the trial court’s judgment because (1) Taylor failed to preserve error regarding

the extraneous offense testimony, and (2) the trial court was entitled to make a Hardesty inference.

I.         Factual Background

           Jitendra Patel and his wife, Jaya Patel, own and operate the Royal Inn, a hotel in Sulphur

Springs. The Patels also live at the hotel, but the owners’ apartment is locked, and the employees

do not have permission to enter it. On October 22, 2013, Jitendra hired Taylor as one of the hotel’s

front desk clerks.

           On December 3, 2013, about six weeks after hiring Taylor, the Patels took a vacation trip

to India and did not return until January 17, 2014.            Before leaving, Jitendra informed his

employees, including Taylor, that he would be gone for an extended period of time.

           When the Patels returned from India, they discovered that their entire apartment had been

ransacked, with papers, property, and furniture scattered all around. Jitendra testified that it looked

like someone had “[s]electively gone through” the bedrooms, back office, living room, and kitchen

“to find . . . the valuable stuff.”




1
    Hardesty v. State, 656 S.W.2d 73 (Tex. Crim. App. 1983).

                                                          2
        At the time the Patels returned from India, Jitendra believed Taylor still worked at the hotel,

but he did not find her working at the front desk. When Jitendra spoke with Taylor on the

telephone, she told him that she had to “take care of some business in Dallas,” that “somebody

[was] in the hospital or something,” that she needed to be in Dallas, and that she would “be back

as soon as possible.” Taylor did not mention the burglary and acted as though everything was

normal. Jitendra never saw Taylor at the hotel again.

        After some of the stolen property was found, Taylor was indicted for burglary of a

habitation, a second degree felony. The case was tried to the court rather than a jury. At trial,

Wanda Henderson testified that she had been taking care of family friend Ron Hansen for about

ten years. She recalled that during December 2013, when the Patels were in India, there was an

ice storm in the area and that because Hansen’s home did not have working heat, she checked him

into the Royal Inn. Henderson met Taylor while checking Hansen out of the hotel. Through her

conversation with Taylor, Henderson learned that Taylor and her husband, James, were homeless

and that they might be interested in being “live-in caretaker[s] for Mr. Hansen.”

        Taylor told Henderson that before taking the caretaker position, she and her husband

wanted to wait until the Patels returned from India. In January 2014, apparently having accepted

the caretaker position, Taylor and James drove to Hansen’s home in a pickup truck and spent two

days moving their things into the bedroom where they would be living. After they moved their

things into the bedroom, Taylor said that they “would be back Saturday to start the job,” and they

left.



                                                  3
       After hearing witness testimony and the arguments of counsel, the trial court found Taylor

guilty of burglary of a habitation. She was sentenced to fifteen years’ confinement. Taylor

perfected this appeal, raising two points of error.

II.    Did the Trial Court Err in Admitting Extraneous-Offense Testimony?

       At trial, Rupinderit Singh testified that when Taylor worked at his Family Mart

convenience store in Sulphur Springs, she stole approximately $4,000.00 from that business. In

her first point of error, Taylor contends that the trial court erred by admitting Singh’s testimony

regarding this extraneous offense.

       In order to preserve alleged error for appellate review, a party must make a timely objection

to the trial court or make some request or motion bringing the issue to the trial court’s attention.

See TEX. R. APP. P. 33.1. Here, Singh twice testified that Taylor previously stole money from his

business, but Taylor failed to object to the testimony on either occasion. Therefore, Taylor failed

to preserve this complaint for our review. See TEX. R. APP. P. 33.1; Vidaurri v. State, 49 S.W.3d

880, 886 (Tex. Crim. App. 2001) (failure to properly object at trial waives appellate review);

Borders v. State, 846 S.W.2d 834, 836 (Tex. Crim. App. 1992) (per curiam).

III.   Did the Trial Court Err by Making a Hardesty Inference?

       In her second point of error, Taylor complains of a Hardesty inference made by the trial

court. Hardesty and its progeny hold that when a defendant is found in possession of recently

stolen property and fails to provide a reasonable explanation for such possession, a fact-finder may

reasonably infer that the defendant stole the property. Hardesty, 656 S.W.2d at 76–77; Poncio v.

State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). However, “no inference of guilt can be raised

                                                  4
where police found the stolen property in a place where others have an equal right and facility of

access.” Blevins v. State, 6 S.W.3d 566, 569–70 (Tex. App.—Tyler 1999, pet. ref’d). On appeal,

Taylor argues that the trial court could not validly utilize a Hardesty inference in reaching its

verdict because the stolen property in this case was found in a place—Hansen’s home—where at

least two other people—Hansen and Henderson—had an equal right and facility of access.2

            At the end of the State’s case, the State asked the trial court about a possible Hardesty

inference:

                   [STATE]:··Your Honor, State has no further witnesses, no further exhibit
            evidence. We would -- at this time, if we could take up the issue of the Hardesty
            inference?

                     (State rests.)

                     ....

                   THE COURT: Did you provide this same -- both the case -- the Hardesty
            case and the section from the Texas Practice Guide -- Texas Practice Series
            regarding the Hardesty inference to Mr. Fergurson?

                     [STATE]: I did, Your Honor.

                    THE COURT: Now, you correct me if I’m wrong, but would this not just
            be part of your closing arguments?

                    [STATE]: Well, I believe it’s a legal device. I know that there’s no jury
            here. It’s not a presumption.

                     THE COURT: Right.

                     [STATE]: But it is -- it’s an inference that the Court can find --

                     THE COURT: Sure.


2
    Taylor does not otherwise challenge the sufficiency of the evidence in this case.
                                                             5
                [STATE]: -- which I think would help our case, but we could certainly just
         argue. That’s true.

                THE COURT: What I’m going to do is just kind of understand that that’s
         going to be part of the State’s argument in support of their burden of proof.
                And so the State has rested their case in chief.

However, after closing arguments, the trial court found that “the State [had] met [its] burden of

proving Ms. Taylor guilty beyond a reasonable doubt” and noted that “[t]his Hardesty inference

[was] actually very helpful in this particular case.”3

         Here, Taylor contends that the court could not employ a Hardesty inference to infer her

guilt because Hansen and Henderson both had equal access and facility to the home where the

stolen property was found. See Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, *2

(Tex. App.—Texarkana Aug. 16, 2012, pet. ref’d) (mem. op., not designated for publication)

(citing Blevins, 6 S.W.3d at 569–70).4 However, Henderson testified that Taylor and James had

moved “nice looking,” “big suitcases” from their truck into Hansen’s home. When Henderson

complimented Taylor on the nice suitcases, Taylor said that she and James bought them at

Goodwill for “about $1.50” each. Patel later identified the suitcases as property stolen from his

home.




3
 Despite the State’s argument to the contrary, the record clearly reflects that the trial court made a Hardesty inference
in reaching its verdict.
4
 We note that Blevins also concluded that fingerprints found on the outside of a window used to enter the burglarized
dwelling were legally insufficient evidence. Blevins, 6 S.W.3d at 570. The Tyler Court relied on Phelps v. State,
which required evidence “excluding every reasonable hypothesis.” Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim.
App. 1980). Since its opinion in Phelps, the Texas Court of Criminal Appeals has held that the State is no longer
required to exclude every reasonable hypothesis. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). This
opinion should not be interpreted as endorsing all conclusions reached in Blevins.
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           The trial court, as the sole fact-finder, was entitled (1) to believe Henderson’s testimony,5

(2) to find that Taylor was in exclusive possession of or that Taylor and James jointly possessed

the suitcases before arriving at Hanson’s home, (3) to find that Taylor made a distinct and

conscious assertion of right to the suitcases,6 (4) to find that Taylors’ explanation of how she

acquired possession of the suitcases to be incredible, and (5) to employ a Hardesty inference in

reaching its verdict in this case. See Hardesty, 656 S.W.2d at 76–77. Therefore, we overrule this

point of error.

           We affirm the trial court’s judgment.




                                                      Ralph K. Burgess
                                                      Justice

Date Submitted:              March 25, 2015
Date Decided:                April 23, 2015

Do Not Publish




5
    See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).
6
    See Rodriquez v. State, 549 S.W.2d 747 (Tex. Crim. App. 1977).
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