







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
                                                                              )
                                                                              )             
No.  08-04-00040-CV
                                                                              )
                                                                              )                    Appeal from the
                                                                              )
IN
THE MATTER OF M.A.L., A Juvenile            )                 65th District Court
                                                                              )
                                                                              )           
of El Paso County, Texas
                                                                              )
                                                                              )                   (TC# 00,00339)
                                                                              )
 
 
O
P I N I O N
 
This is an appeal
from an order of adjudication, finding that M.A.L., a juvenile, engaged in
delinquent conduct by committing the offense of burglary of a habitation.  After a disposition hearing, the court
entered an order committing M.A.L. to the Texas Youth Commission.  On appeal, M.A.L. argues the evidence was
legally and factually insufficient to justify the trial court=s order of adjudication.  We affirm.




On October 10,
2003, Flor Martinez, the complainant, left her home at 1520 Cezanne Circle in
El Paso around 2:20 p.m. and returned around 4 p.m.  Ms. Martinez and her boyfriend, Eduardo
Garcia, found that the top bolt of the front door was locked, which was
something they never did because the lock would jam.  When they finally got the door open, they
realized that somebody was inside the house. 
Mr. Garcia ran to the back of the house and found that the sliding glass
doors and a window were open and the screen was off the back window.  Once Ms. Martinez was inside, she found
that the following property was missing: a television, a VCR, a DVD, a remote,
a camcorder, jewelry, bottles of liquor, and a coin collection.  Ms. Martinez also noticed that the stereo had
been moved and disconnected.  Ms.
Martinez testified that the property taken was hers and that she had not given
anyone permission to take her property. 
She also testified that she did not know M.A.L. and never gave the
juvenile permission to enter her home nor had she allowed him into her home.
On
cross-examination, Ms. Martinez admitted that she initially suspected that her 
ex-husband was the culprit.  She explained that at the time she was going
through a divorce and it so happened that everything her husband was asking for
was gone.  That week, Mr. Garcia was in
the process of moving in with her.  Ms.
Martinez thought that entry to her home was gained possibly through an unlocked
window in the back, from which the screen had been removed.  
On redirect, Ms.
Martinez stated the stolen television, DVD, and VCR, were taken from an  armoire. 
These items were all connected to a surge protector in the back of the
armoire.  Ms. Martinez explained
that when she found the property missing, she called the police and then called
her lawyer.  Her lawyer told her to go
ahead and let the police take fingerprints in order to rule out her
ex-husband.  Ms. Martinez assumed that
the burglar left through the back door because the items taken would not have
fit through the window.




Eduardo Garcia
testified that on the day of the incident, he was living at the residence.  He was with Ms. Martinez from the time they
left the house that afternoon and upon their return.  Mr. Garcia stated that he did not know M.A.L.
and has never let the juvenile into the house. 
He also stated that he had only recently plugged the television, DVD,
and VCR into the surge protector when he had moved in.
Officer Leonard
Harris, Jr., a crime scene technician with the El Paso Police Department, was
dispatched to Ms. Martinez=s
home to investigate the burglary. 
Officer Harris photographed the scene and processed the scene for latent
fingerprints.  The suspected point of
entry to the home was the side window. 
Using black magnetic powder, Officer Harris lifted four latent
fingerprints--three from the surge protector behind the armoire and one was
from the interior of the sliding glass door. 
Officer Harris turned the prints over to the latent prints section of
the police department.
Bruce Orndoff, a
latent fingerprint examiner for the El Paso Police Department, received the
latent print card from Officer Harris and ran the prints through the department=s Automated Fingerprint Identification
System.  Officer Orndoff testified that
one of the prints, a simultaneous impression of two fingers side by side from
the surge protector, was of evidentiary value. 
The print positively matched the right, middle and ring fingers of
M.A.L.  On cross-examination, Officer
Orndoff testified that it was not possible to determine the age of the prints
on the surge protector.
M.A.L.=s mother testified in behalf of his
defense.  She stated that she never saw
her son in possession of the property taken nor had she ever seen him in
possession of property that did not belong to him.  His mother also stated that the police never
searched her home in efforts to find any stolen property.  On cross-examination, M.A.L.=s mother admitted that on October 21,
2003, M.A.L. was not residing with her and that she did not know where he was
because he had run away.  M.A.L. also
called Officers Henry Rivera and Edward Mendoza who both testified that they
did not know if there was any effort to locate the stolen property.




In two issues,
M.A.L. challenges the legal and factual sufficiency of the evidence to support
the trial court=s finding
that he engaged in delinquent conduct by committing the offense of burglary of
a habitation.
Standards
of Review 
When reviewing
challenges to the legal sufficiency of the evidence to establish the elements
of the penal offense that forms the basis of the finding that the juvenile
engaged in delinquent conduct, we must determine whether, after viewing all the
evidence in the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable
doubt.  See Jackson v. Virginia,
443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); In Matter of
A.S., 954 S.W.2d 855, 858 (Tex.App.--El Paso 1997, no pet.).  The standard is the same for both direct and
circumstantial evidence cases.  Kutzner
v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999).  We do not resolve any conflict of fact or
assign credibility to the witnesses, as this was the function of the trier of
the fact.  See Adelman v. State,
828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d
839, 843 (Tex.Crim.App. 1991).  Instead,
our duty is to determine if both the explicit and implicit findings of the
trier of fact are rational by viewing all of the evidence admitted at trial in
a light most favorable to the verdict.  Adelman,
828 S.W.2d at 422.  In so doing, any
inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.  




When conducting a
factual sufficiency review of the evidence, we consider all of the evidence,
but we do not view it in the light most favorable to the verdict.  Clewis v. State, 922 S.W.2d 126, 129
(Tex.Crim.App. 1996).  There are two ways
in which we may find the evidence to be factually insufficient.  Zuniga v. State, 144 S.W.3d 477, 484
(Tex.Crim.App. 2004).  Evidence is
factually insufficient when the evidence supporting the finding of guilt,
considered alone, is too weak to support the finding beyond a reasonable
doubt.  See id.  Evidence is also insufficient when contrary
evidence is so strong that guilt cannot be proven beyond a reasonable
doubt.  See id. at 485.  However, in our factual sufficiency review, we
must give appropriate deference to the trier of fact and should not intrude
upon its role as the sole judge of the weight and credibility given to evidence
presented at trial.  See Johnson v.
State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at
133.  Accordingly, we are authorized to
set aside the trier of fact=s
factual finding only in instances where it is manifestly unjust, shocks the
conscience, or clearly demonstrates bias. 
See Clewis, 922 S.W.2d at 135. 
Burglary
of a Habitation
A person commits
the offense of burglary of a habitation if, without the effective consent of
the owner, he enters a habitation with the intent to commit a theft.  See Tex.Pen.Code
Ann. ' 30.02(a)(1)(Vernon
2003).  M.A.L. argues that the State
failed to establish that he entered the house or that he had the intent to
commit a theft.  Specifically, M.A.L. points
out that there were no witnesses placing M.A.L. in the vicinity at the time of
the burglary, no clear evidence as to when the fingerprints were made, and no
evidence that he was ever in possession of any of the stolen items.  Rather, M.A.L. asserts that the evidence only
shows his mere presence at the scene, which does not support a finding of
intent to commit theft.




Viewing the
evidence is the light most favorable to the trial court=s
finding, the evidence shows that on the day in question, someone broke into Ms.
Martinez=s home
and stole numerous items, including a television, DVD, and VCR, which were kept
in an armoire and had been connected to a surge protector behind the
armoire.  Ms. Martinez testified that she
did not give anyone permission to take her property and never gave consent to
M.A.L to enter her home.  Mr. Garcia
stated that he did not know M.A.L. and never let the juvenile into the
house.  Mr. Garcia had only recently
plugged the television, DVD, and VCR into the surge protector.  However, the only evidence linking M.A.L. to
the crime were two fingerprints on the surge protector, which were found to be
a positive match to M.A.L.
The mere
possibility that a defendant=s
fingerprints may have been left at a time other than the time of the offense
does not necessarily render the evidence insufficient.  Phelps v. State, 594 S.W.2d 434, 436
(Tex.Crim.App. 1980).  Whether
fingerprint evidence, standing alone, is sufficient to sustain a conviction
will depend upon the facts and circumstances of each case.  Id. 
One of the most important factors in evaluating the sufficiency of
fingerprint evidence is the extent to which the fingerprinted object was
accessible to the defendant.  Id.;
Villarreal v. State, 79 S.W.3d 806, 811 (Tex.App.--Corpus Christi 2002,
pet. ref=d).
In this case,
M.A.L.=s
fingerprints were found on the surge protector behind the armoire, which was
located in Ms. Martinez=s
house.  The trier of fact could
reasonably infer that the surge protector was out of sight and not accessible
to visitors in the home.  Moreover,
neither Ms. Martinez nor Mr. Garcia knew M.A.L. and both testified that they
never gave him permission to enter the house. 
Since their testimony indicates that M.A.L. had no opportunity to be
present in their home prior to the burglary, a strong inference arises that the
only time that M.A.L. could have been in their home and placed his hand on the
surge protector was at the time of the burglary.




Further, there is
evidence which supports the element of intent to commit theft.  The testimony established that the stolen
television, DVD, and VCR had been connected to the surge protector.  Intent to commit theft may be inferred from
the defendant=s conduct
and surrounding circumstances.  In the
Matter A.S., 954 S.W.2d  at 859; see
also Ortega v. State, 626 S.W.2d 746, 749 (Tex.Crim.App. 1981)(question of
intent to commit theft is a fact question which 
a jury can resolve from the surrounding circumstances).  From the circumstances, the jury in this case
could have reasonably inferred that M.A.L., in making contact with the surge
protector, was the individual that unplugged the electronic equipment and took
the items from Ms. Martinez=s
house.  Despite M.A.L.=s contentions, the State was not
required to show there were witnesses to the crime or that M.A.L. was found in
possession of the stolen items.  While
Mr. Garcia=s
testimony does not establish with certainty when the surge protector was placed
behind the armoire or where the surge protector came from, we find that the
evidence taken as a whole negates the probability that M.A.L.=s fingerprints were made prior to the
time of the burglary.  See Phelps,
594 S.W.2d at 436.  We conclude that the
evidence was legally sufficient to support the trial court=s finding that M.A.L. engaged in
delinquent conduct by committing the offense of burglary of a habitation.  Further, after viewing the evidence in a
neutral light, we conclude that the evidence of guilt, considered alone, is not
too weak to support the guilty finding beyond a reasonable doubt nor is the
contrary evidence strong enough that the beyond-a-reasonable doubt standard was
not met.  Therefore, we also conclude
that the evidence is factually sufficient. 
Issues One and Two are overruled.
We affirm the
trial court=s order.
 
 
February
24, 2005
DAVID WELLINGTON
CHEW, Justice
 
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.

