                                  NO. 12-19-00169-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 JEROMY DEVON STEWART,                            §      APPEAL FROM THE 7TH
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Jeromy Devon Stewart appeals his conviction for burglary of a building. In a single issue,
he contends the evidence is insufficient to support his conviction. We affirm.


                                         BACKGROUND
       Classic Toyota reported that its automotive and body shop was burglarized overnight on
August 24 and August 28, 2018. The dealership’s portable battery charger and several tools were
missing. The surveillance video from August 29 at 4:00 a.m. showed a man exiting through a shop
window and walking towards the adjacent La Quinta Inn carrying the portable charger. During
the investigation, detectives learned that Appellant was staying at the La Quinta Inn and that he
had performed detail work at Classic Toyota. A Classic Toyota employee reported to the manager
of the body shop that Appellant previously tried to sell him tools. When the detective searched for
the serial number to a missing code scanner, she found that it matched the number of a scanner
sold by Appellant to a pawn shop. She then learned that Appellant sold fourteen items to two
different pawn shops. Those items were previously reported stolen from either Classic Toyota or
cars parked nearby.
       Appellant was arrested and charged by indictment with burglary of a building. He pleaded
“not guilty,” and the matter proceeded to a jury trial. The jury found Appellant “guilty” and
sentenced him to two years confinement. This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his sole issue, Appellant contends the evidence is insufficient to support his conviction.
Specifically, he urges that he presented an innocent explanation for his possession of the stolen
property.
Standard of Review
       In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d
560 (1979). The standard for reviewing a legal sufficiency challenge is whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. See id.,
443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the light most favorable to the
verdict. Id. A successful legal sufficiency challenge will result in rendition of an acquittal by the
reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed.
2d 652 (1982). This familiar standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the factfinder by reevaluating the weight and credibility of the evidence. See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead,
we defer to the factfinder’s resolution of conflicting evidence unless the resolution is not rational.
See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that
determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and
circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct



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evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The duty of a
reviewing court is to ensure that the evidence presented actually supports a conclusion that the
defendant committed the crime charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007).
        The sufficiency of the evidence is measured against the elements of the offense as defined
by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include 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.
Applicable Law
        As pertinent here, a person commits the offense of burglary if he, without consent of the
owner, enters a building and commits theft. TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2019).
In cases where there is independent evidence of a burglary, the unexplained personal possession
of recently stolen property may constitute sufficient evidence to support a conviction. See Chavez
v. State, 843 S.W.2d 586, 587 (Tex. Crim. App. 1992); Sutherlin v. State, 682 S.W.2d 546, 549
(Tex. Crim. App. 1984). Mere possession of stolen property does not give rise to a presumption of
guilt, but rather it will support an inference of guilt of the offense in which the property was stolen.
Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). To warrant an inference of guilt
based solely on the possession of stolen property, it must be established that the possession was
personal, recent, and unexplained. Grant v. State, 566 S.W.2d 954, 956 (Tex. Crim. App. [Panel
Op.] 1978).
        Also, the possession must involve a distinct and conscious assertion of right to the property
by the defendant. Id. If the defendant offers an explanation for his or her possession of the stolen
property, the record must demonstrate the account is false or unreasonable. Adams v. State, 552
S.W.2d 812, 815 (Tex. Crim. App. 1977). Whether a defendant’s explanation for possession of
recently stolen property is true or reasonable is a question of fact to be resolved by the trier of fact.
Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no pet.).




                                                   3
Analysis
       On appeal, Appellant argues that the evidence is insufficient to prove that he actually stole
the tools. In support of his argument, Appellant points to the testimony of his fiancé, Lapeteress
Thompson. At trial, Thompson testified that the couple moved to Tyler because Appellant
procured a job as a maintenance worker at an apartment complex. However, the job never
materialized, and the couple moved into a hotel room at the La Quinta near Classic Toyota.
Appellant obtained a job at Red Lobster and performed contract work at Classic Toyota washing
cars. Thompson testified that in August 2018, a man she knew as “Ron T.” approached Appellant
and gave him some tools to pawn. She further testified that she never suspected “Ron T.” was
doing something “malicious.” Appellant asserts that this “innocent explanation” for his possession
and pawning of the tools is sufficient to disprove that he stole them.
       At trial, Michelle Brock, a detective with the Tyler Police Department, testified that the
serial number on a code reader stolen from Classic Toyota matched the one Appellant sold to a
pawn shop. Detective Brock further testified that her investigation showed that Appellant pawned
fourteen stolen items at two different pawn shops between August 11 and August 27, 2018. The
detective was able to identify all of the items Appellant pawned and learned that they had been
reported stolen in either the Classic Toyota case or other burglary cases.
       Contrary to Appellant’s assertion, direct evidence refuting his “innocent explanation” is
not required when the State presents sufficient evidence that would support the jury’s rejection of
Appellant’s explanation as false or unreasonable, including the jury’s ability to simply reject
Appellant’s explanation as incredible. Reyes v. State, 422 S.W.3d 18, 25 (Tex. App.—Waco 2013,
pet. ref’d). 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. Poncio v. State, 185
S.W.3d 904, 905 (Tex. Crim. App. 2006). Further, an appellant’s exclusive and unexplained
possession of property recently stolen in a burglary in conjunction with the fact that he pawned the
property very close in time to the burglary are sufficient to support a burglary conviction. See id.;
Reyes, 422 S.W.3d at 24.
       As the sole judge of the weight and credibility of the evidence, the jury was entitled to
believe Detective Brock’s testimony and discredit Thompson’s explanation. See Brooks, 323
S.W.3d at 899. In doing so, the jury could reasonably determine that Appellant possessed the
pawned items because he entered Classic Toyota without consent and committed theft. Therefore,



                                                 4
viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury
could have found the essential elements of burglary of a building beyond a reasonable doubt. See
TEX. PENAL CODE ANN. § 30.02(a)(3). We overrule Appellant’s sole issue.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice


Opinion delivered December 11, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        DECEMBER 11, 2019


                                         NO. 12-19-00169-CR


                                  JEROMY DEVON STEWART,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1700-18)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
