            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-02-00212-CR



                                   James Robert Miller, Appellant

                                                    v.

                                     The State of Texas, Appellee


        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
               NO. 9014218, HONORABLE JON WISSER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 This is an appeal from a felony conviction for burglary of a habitation.1 Appellant James

Robert Miller was found guilty by a jury, and punishment, enhanced by prior convictions,2 was assessed by

the court at thirty years= imprisonment. Miller challenges his conviction because (1) there was insufficient

evidence to support the jury=s finding of guilt, and (2) the court should have granted Miller=s motion for

directed verdict. We affirm the conviction.


                                     FACTUAL BACKGROUND




        1
            See Tex. Pen. Code Ann. ' 30.02 (West Supp. 2003).
        2
          Miller was previously convicted of burglary of another habitation, rape, burglary of a structure,
grand theft, and escape.
                Carol Lindsey=s home in Austin was burglarized on the evening of July 29, 2001. She

testified that she left her home at approximately 6:00 p.m. and returned about 10:00 p.m. and discovered

that her home had been burglarized. The property taken in the burglary included a Dell laptop computer, a

mountain bicycle, two televisions, a jewelry box, and two cordless telephones. She discovered that a

window pane in her back door was broken and a previously locked door was pried open. There were pry,

scratch and gouge marks on the doors indicating forced entry. After calling the police, she left and stayed

the night at a friend=s house. Ms. Lindsey testified that she was a real estate agent and kept most of her

business files on her computer.

                Officer Raymond Lopez testified that about 12:20 a.m. on July 30, 2001, while on routine

patrol, he saw a pickup truck containing two men and a woman parked along a poorly lighted street in a

wooded area of Austin. He saw one of the occupants throw something out the window, so he approached

the vehicle to investigate. The three occupants denied having identification. Appellant, a passenger, told the

officer that the truck belonged to his girlfriend, Kathy Smith. The officer noticed that the air bags in the

vehicle had been deployed and repositioned and held in place with duct tape. He checked and the vehicle

was registered to a Robin Rostetter, but it had not been reported stolen. He asked the occupants to

produce documentation that the vehicle belonged to Kathy Smith, which they were unable to do.

                At that point, Officer Lopez asked to search the vehicle. The driver, Howard Hill, agreed

to the search and neither the female passenger, Terrie Hanshew, nor appellant objected. Officer Lopez

frisked and handcuffed the three. Appellant was found to be carrying a large flat-tipped screwdriver. Upon

searching the vehicle, Officer Lopez found three or four screwdrivers, an ice pick, and several wire hangers



                                                      2
that had been cut, hammered and flattened. Behind the seat on the passenger=s side, he found a Dell laptop

computer, two cordless telephones, and two beepers. Appellant claimed that all of the items belonged to

Kathy Smith.

                Officer Lopez turned on the computer and opened its operating program. In the

Adocuments@ file of the computer, he found various documents regarding Carol Lindsey, along with her

home address. The officer placed a telephone call to Carol Lindsey but was unable to reach her. He

released the three because he had no proof that the items were stolen. However, he impounded the vehicle

and other items until their ownership could be established. Officer Lopez noticed that the three were not at

all upset that he kept the property. Later, Officer Lopez learned a burglary had been reported at the home

address listed on the computer within two hours of his stopping appellant and his companions. Arrest

warrants issued for the three individuals.

                On July 30, patrol officers spotted the three downtown in the 600 block of Brazos Street.

Officer Christopher Bealand testified that he arrested appellant, Hill, and Hanshew, and found hand tools on

both males. Appellant had tin snips, a screwdriver, and a crescent wrench. Hill had pliers and a

screwdriver in his back pocket. They were also in possession of a white duffle bag containing a tool box.

                Detective Joseph Lucas testified that he took the Dell laptop computer and the two cordless

telephones, which were found in the pickup truck in which appellant was riding, to Carol Lindsey. She

identified the items as having been taken from her home in the burglary.

                Hill testified on behalf of the State. He said that he helped appellant burglarize Lindsey=s

house sometime between 4:00 p.m. and 6:00 p.m. on July 29, 2001. He said that he drove a Mazda



                                                     3
pickup truck, which he thought belonged to appellant=s girlfriend, a woman named Kathy Smith. Hill

testified that the three drove around the Lamar/24th Street neighborhood and spotted the house in question.

Hill said that while he and his girlfriend, Hanshew, stayed in the pickup, appellant went to the back of the

house. Hill then heard a loud pop sound like wood being scraped. Three minutes later, Hill said, appellant

came around the corner of the house riding a bicycle which he put in the back of the truck. Hill testified that

appellant then got into the truck and instructed him to back the pickup into the driveway. Appellant went

back into the house and emerged again Awith other stuff,@ which he loaded into the truck. Some of the

items, like a laptop computer and two telephones, appellant placed behind the seat on the passenger=s side

of the truck. Hill testified that the three then sold the bicycle and television sets. He admitted that he

received a portion of the money from the sale of those items.

                 Hill admitted on cross-examination that he previously had committed felonies such as

engaging in organized crime, several burglaries of a vehicle, theft, and possession of a controlled substance.

He conceded that he was testifying pursuant to a plea bargain agreement under which, in return for his

testimony, he was given only a five-year sentence for the burglary offense instead of the twenty-five to

ninety-nine years he was eligible for as a result of his previous felony convictions. On redirect, Hill testified

that he was not eager to give this testimony because he was concerned about having to Awatch his back in

prison.@

                 The only defense witness was Robert Ciak, an alibi witness. He testified that he was with

appellant on July 29, 2001. On direct examination, he testified that he was a good friend of appellant=s and

had known him two or three years. On the day in question, he testified that he had gone to church at the



                                                       4
Salvation Army, went home and changed clothes, ate breakfast and met up with appellant at approximately

10:15 a.m. He said that appellant remained in his company throughout the day and evening. Ciak said that

the two rode the bus and went to Zilker Park and visited the oriental gardens for three or four hours.

Thereafter, he said they went bar-hopping on Sixth Street. Ciak said that he left appellant=s company at

9:48 p.m. because he had to be at a friend=s house by ten o=clock. He testified that appellant left in a small

pickup truck with Hill and a woman. Ciak testified that appellant had been with him the entire day.

                 Ciak testified that he was unaware of appellant=s past or the fact that appellant had been in

prison. Ciak said that as long as he had known him appellant had never done anything Abad@ and that

appellant was not Athat kind of person.@ At the time of the burglary in question, Ciak and appellant shared

an apartment. Ciak testified that when appellant did not come home for several days Ciak called the police

department and learned that appellant was in jail for burglary.

                 Ciak was asked why he did not tell the police that he could vouch for appellant=s

whereabouts at the time of the burglary when he called them. He said that it just did not occur to him to do

that. Although appellant was in jail in the meanwhile, Ciak said that he Afigured [he would] wait till

[appellant] comes to court so [Ciak could] talk to his attorney.@ On cross-examination, Ciak admitted that

he visited appellant in jail several times. Ciak admitted that he was convicted of theft six different times, and

that he had been in prison from 1995 to 1998.


                                               DISCUSSION

                 On appeal, appellant brings two points of error, complaining that: (1) there was legally

insufficient evidence to convict him; and (2) his motion for directed verdict should have been granted.

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Complaints regarding a motion for directed verdict are treated as complaints about the legal sufficiency of

the evidence to support the conviction. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996);

Grayson v. State, 82 S.W.3d 357, 358 (Tex. App.CAustin 2001, no pet.). Both of his points essentially

attack the credibility of his accomplice, Howard Hill.


Sufficiency of Evidence

                 Appellant argues that because of Hill=s criminal history no rational trier of fact could have

found him guilty beyond a reasonable doubt. Appellant contends that the plea bargain Hill struck with

prosecutors by which he reduced his punishment to only five years was a powerful incentive for him to

fabricate his testimony implicating appellant. When compared to Ciak=s testimony, appellant argues that

Hill=s story is not credible. Although Ciak himself had a long criminal background, appellant argues that

Ciak had no incentive to lie and was therefore more credible than Hill.

                 In reviewing the legal sufficiency of the evidence, we consider all the evidence in a light most

favorable to the verdict and determine whether a rational trier of fact could have found all the elements of

the offense3 beyond a reasonable doubt. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998);

Millslagle v. State, 81 S.W.3d 895, 897 (Tex. App.CAustin 2002, no pet.).




        3
           The elements of the offense of burglary of a habitation are (1) entering a habitation, (2) without the
effective consent of the owner, and (3) with intent to commit felony theft. See Lopez v. State, 884 S.W.2d
918, 920 (Tex. App.CAustin 1994, pet. ref=d).




                                                       6
                Even if one disregards the testimony of both Ciak and Hill, there is still ample evidence in

the record establishing beyond a reasonable doubt that appellant committed this burglary. Appellant was

found with Lindsey=s Dell laptop computer and cordless telephones behind the seat of the truck he was in

shortly after the burglary. The physical evidence at the scene showed that the method of entry into

Lindsey=s home was consistent with the hand tools found on appellant shortly after the burglary. Appellant

lied to the police officer about the ownership of the truck, the computer, and the two cordless telephones.

                The offense of burglary may be established through circumstantial evidence. Nelson v.

State, 905 S.W.2d 63, 64 (Tex. App.CAmarillo 1995, no pet.). A rational jury could have disregarded

both Hill and Ciak=s testimony and convicted appellant based solely on the strong physical evidence and the

testimony of the police officers involved. Regardless of the lack of direct evidence placing appellant at the

scene of the crime, a burglary conviction may rest upon independent evidence that a burglary occurred and

the defendant=s possession of recently stolen property without a reasonable explanation. See, e.g., Chavez

v. State, 843 S.W.2d 586, 587-88 (Tex. Crim. App. 1992); Dimas v. State, 14 S.W.3d 453, 459 (Tex.

App.CBeaumont 2000, pet. ref=d); Sweeney v. State, 925 S.W.2d 268, 270-71 (Tex. App.CCorpus

Christi 1996, no pet.); Price v. State, 902 S.W.2d 677, 680 (Tex. App.C1995, no pet.); Jones v. State,

899 S.W.2d 25, 27 (Tex. App.CTyler 1995, no pet.).

                Furthermore, there were substantial reasons why a rational jury could choose to believe

Hill=s testimony over Ciak=s. Hill=s testimony was consistent with the physical evidence; Ciak=s was not.

While Hill did receive a reduced sentence in return for his testimony, there was also evidence that he faced

potential recriminations in prison as a consequence.



                                                       7
                 Moreover, Ciak=s testimony was impeached in several respects. The prosecution showed

that Ciak and appellant could not have been friends as long as Ciak claimed because both had been in

prison for most of the time that Ciak said he was appellant=s roommate. A jury could have concluded that

Ciak=s testimony that he was unaware of appellant=s criminal background was not credible. Finally, the fact

that Ciak did not come forward with his alibi testimony until trial, even though his friend was in jail and he

had discussed the case with the police a few days after the offense, undermines his credibility. Resolving

conflicts in the evidence is exclusively the province of the jury. Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). There is sufficient evidence for any rational trier of fact to find appellant guilty of

burglary of a habitation beyond a reasonable doubt. Appellant=s first point of error is overruled.


Directed Verdict

                 By his second point, appellant asserts that the trial court erred in denying his motion for

directed verdict because the testimony of Hill was not credible and, Atherefore, the burglary of a habitation

was not proved.@ In light of the physical evidence establishing appellant=s guilt, we overrule his legal

sufficiency challenge for the reasons indicated above.


                                              CONCLUSION

                 The judgment of the trial court is affirmed.




                                                   Jan P. Patterson, Justice

                                                      8
Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: February 6, 2003

Do Not Publish




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