Opinion file June 26, 2014




                                        In The


        Eleventh Court of Appeals
                                      __________

                                 No. 11-12-00154-CR
                                      __________

                      LUIS GARCIA LUJAN, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 161st District Court
                                  Ector County, Texas
                             Trial Court Cause No. B-38,346


                     MEMORANDUM OPINION
       Luis Garcia Lujan appeals his jury conviction of burglary of a building. See
TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). The trial court sentenced
Appellant to confinement in the State Jail Division of the Texas Department of
Criminal Justice for a term of one year but suspended the sentence and placed
Appellant on community supervision for a term of two years. In a single point of
error, Appellant argues that the evidence was legally insufficient to support his
conviction. We affirm.
                                          Background Facts
        Appellant was charged by indictment with burglary of a building. The
indictment alleged that, on or about July 25, 2009, Appellant intentionally entered
a building without the effective consent of Humberto Jimenez, the owner therof,
and attempted to commit or committed theft of property, to wit: beer. Appellant
pleaded “not guilty” to the charge, and the case proceeded to trial.
        Investigator Danial Linley of the Ector County Sheriff’s Office testified that
he was on patrol duty during the early morning hours of July 25, 2009, when he
was dispatched to the Far West Event Center1 at 5850 West University Boulevard
in Odessa, Texas, in order to investigate a potential burglary. Once Investigator
Linley arrived at the scene, he noticed that several of the business’s glass windows
and doors were shattered and that glass bottles were scattered outside the front of
the building.2
        Humberto Jimenez, the owner of the Far West Event Center, arrived on the
scene after Investigator Linley asked dispatch to call the key carrier of the
building. Jimenez and Linley then went inside the building, and Linley noticed a
cash register on the floor. Linley also noticed that the coolers did not have a large
amount of alcohol in them.
        Jimenez testified that the Ector County Sheriff’s Office asked him to report
to his business, the Far West Event Center, on July 25, 2009, in response to a


        1
         At trial, Investigator Linley and other witnesses referred to the business targeted by the burglary
as the “Far West Club” or the “Far West Nightclub.” Because Jimenez referred to his business as the “Far
West Event Center,” we will refer to the business as the “Far West Event Center” as well.
        2
        Linley’s description of the scene was confirmed by photographs he took that night, which were
provided to the jury. The photographs showed broken glass in several of the windows and doors at the
Far West Event Center and beer bottles strewn outside.

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burglary report. Once he arrived at the scene, Jimenez noted that the front door of
his business had been broken, three cash registers had been destroyed, and about
forty cases of beer had been stolen. Jimenez stated that the Far West Event Center
had been closed at the time of the burglary and that he did not give Appellant
permission to enter the building after hours.
        Lieutenant Roddy Eaton of the Ector County Sheriff’s Office testified that
he was on patrol during the early morning hours of July 25, 2009, when he drove
past the Far West Event Center. Lieutenant Eaton explained that the business drew
his attention because he saw a single vehicle parked in the parking lot at 3:25 a.m.
        After Lieutenant Eaton pulled into the parking lot, he observed four to six
people standing around a pickup. As Lieutenant Eaton approached the pickup, he
notified headquarters of his location. The people then jumped into the pickup, and
several of them started yelling “go, go, go, go.” The pickup sped off toward
FM 1936, and Lieutenant Eaton activated the lights and siren on his patrol vehicle
as he began to pursue the pickup. During the course of the fifteen-minute pursuit
that followed, the occupants of the pickup threw “beer bottles” at Lieutenant
Eaton’s patrol vehicle.3
        The pursuit ended when the pickup reached a dead end. Lieutenant Eaton
then took three people into custody: Victor Urias (whom Lieutenant Eaton
identified as the pickup’s driver), Appellant, and Isaac Hinojos. When Lieutenant
Eaton searched the pickup, he found an empty carton of Smirnoff Ice Green Apple
Bite 4 in the backseat.



        3
          Video taken from the dashboard camera in Lieutenant Eaton’s patrol vehicle on the night of
Appellant’s arrest was played for the jury. In the video, the occupants of the pickup can be seen throwing
bottles at Lieutenant Eaton’s patrol vehicle as he chased the pickup.
        4
            Smirnoff Ice is a malt beverage that is packaged in glass bottles.
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      The jury ultimately found Appellant guilty of the offense of burglary of a
building. As we have stated, the trial court sentenced Appellant to confinement for
a term of one year but suspended that sentence and placed Appellant on
community supervision for a term of two years. As a condition of Appellant’s
community supervision, the trial court ordered him to serve thirty days in county
jail. The trial court also ordered Appellant to pay a fine in the amount of $500.
                                       Analysis
      Through a single point of error, Appellant contends that the evidence
presented at trial was legally insufficient to support his conviction for burglary of a
building.    Appellant focuses his evidentiary challenge on testimony from
Lieutenant Eaton wherein he stated that he did not see Appellant enter the building
and that he did not know of anything that Appellant did to aid, encourage, or abet
the commission of the crime.
      We review a challenge to the sufficiency of the evidence 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).
      To support a conviction for burglary of a building, the State must prove that
a person, without the effective consent of the owner, entered a building and
committed    or   attempted    to   commit     a   felony,   theft,   or   an   assault.
PENAL § 30.02(a)(3).      The State may prove burglarious entry through


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circumstantial evidence.      Gilbertson v. State, 563 S.W.2d 606, 608 (Tex.
Crim. App. 1978).
      In this case, the trial court’s charge to the jury included an instruction on the
law of parties. Under the law of parties, a person may be convicted as a party to
the offense if the offense is committed by his own conduct, by the conduct of
another for which he is criminally responsible, or by both. PENAL § 7.01(a). A
person is criminally responsible for an offense committed by the conduct of
another if, acting with the intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense. Id. § 7.02(a)(2).
      To determine if a person acted as a party to an offense, the trier of fact may
look to events occurring before, during, and after the offense. Salinas v. State, 163
S.W.3d 734, 739–40 (Tex. Crim. App. 2005). Participation in the offense may be
inferred from circumstantial evidence and need not be shown by direct evidence.
Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).
      After reviewing the record, we conclude that the circumstantial evidence
presented at trial is sufficient to support Appellant’s conviction for burglary of a
building as a party.    In addition to Appellant’s presence at the scene of the
burglary, his flight from the scene provides additional circumstantial evidence of
his guilt. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007)
(stating that a factfinder may draw an inference of guilt from the circumstance of
flight); Thomas v. State, 645 S.W.2d 798, 800 (Tex. Crim. App. 1983) (stating that
presence of the accused at the scene of an offense is a circumstance tending to
prove guilt that, combined with other facts, may suffice to show that the accused
was a participant); Miller v. State, 83 S.W.3d 308, 314 (Tex. App.—Austin 2002,
pet. ref’d) (“[W]hile mere presence at the scene, or even flight, is not enough to


                                          5
sustain a conviction, such facts may be considered in determining whether an
appellant was a party to the offense.”).
      Moreover, Appellant’s possession of property corresponding to that which
was stolen is further circumstantial evidence that he committed the charged
offense. See Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007)
(finding that 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). Although there was no direct evidence that the bottles thrown from the
pickup in which Appellant was riding were the same ones stolen from the Far West
Event Center, the jury could have reasonably inferred from the circumstances that
the bottles thrown from the pickup linked Appellant to the burglary. See Jones v.
State, 458 S.W.2d 89, 91–92 (Tex. Crim. App. 1970) (“[A]rticles in an accused’s
possession may be identified by circumstantial evidence as well as by direct
testimony. If it appears [that the articles] correspond with articles that were stolen,
the question may go to the jury.”); Villani v. State, 116 S.W.3d 297, 306 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d) (“Proof of ownership may be made
by circumstantial evidence.”).
      We conclude that the logical force of the circumstantial evidence, when
viewed in combination with the reasonable inferences from that evidence and in a
light most favorable to the verdict, was sufficient for a rational jury to determine
that the essential elements of burglary of a building were met beyond a reasonable
doubt. Appellant’s sole point of error is overruled.




                                           6
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


June 26, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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