                         NUMBER 13-13-00084-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ERNESTO GOMEZ,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                   Appellee.


                    On appeal from the 24th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION

          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Rodriguez
      Appellant Ernesto Gomez challenges his conviction for burglary of a building.

See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). By one issue, appellant argues

the evidence was insufficient to prove he was guilty. We affirm.
                                            I. Background

        Appellant was charged with the burglary of a building in connection with the

alleged theft of lawn tools from the outdoor sheds of Paul Sanchez. See id. Appellant

pleaded not guilty, waived his right to a jury trial, and the case was tried to the bench.1

        At trial, Blake Sanchez, the brother of Paul Sanchez, testified that on the morning

of the incident, he witnessed appellant under his brother’s carport as he drove by. Blake

described seeing some lawn tools on the ground near appellant. He testified that he

immediately called his brother, who was at work, to ask if someone was supposed to be at

his house. When his brother told him no, Blake turned around, and appellant was no

longer there. While appellant was in custody, Blake identified appellant as the man that

he saw under his brother’s carport.

        Paul Sanchez testified that he has two outdoor sheds where he keeps his lawn

tools and various other possessions. He testified that he keeps his leaf blower in the first

shed and weed eater in the second shed, and that the sheds remain unlocked. Paul

testified that the day before the incident, he had used his leaf blower and weed eater

while doing lawn work and had returned the lawn tools to their proper places in his storage

sheds. He testified that he is very neat and careful with his belongings and would not

have left his tools outside.

        Officer Sean Sheehan of the Victoria Police Department testified that he

responded to a caller, who gave a description of appellant in regards to the other charged


        1
          Appellant was also charged with attempted burglary of a habitation. TEX. PENAL CODE ANN. §
30.02(a)(1), (c)(2) (West 2011). The trial court convicted him of this offense, as well, but appellant is not
challenging that conviction.
                                                     2
offense in this case.2 Officer Sheehan testified that he identified a man matching the

caller’s description walking down the street carrying a leaf blower and a weed eater.

According to Officer Sheehan, as he approached the man in his vehicle, the man dropped

the items and fled on foot. Officer Sheehan pursued the man and took him into custody.

Once in custody, the man claimed that the leaf blower and weed eater belonged to his

niece, but was unable to give a name, address, or any details to confirm his claim.

Officer Sheehan discovered that the suspect also had two screwdrivers in his pocket.

According to Officer Sheehan, he has learned through his police experience that

screwdrivers are commonly used as prying tools in burglaries. Officer Sheehan then

testified that two witnesses were able to identify the suspect in custody as appellant.

       After the aforementioned testimony and argument by counsel, the trial court found

appellant guilty of burglary of a building. Appellant was sentenced to twenty years’

incarceration. This appeal followed.

                         II. Standard of Review and Applicable Law

       In a sufficiency review, we “view all of the evidence in the light most favorable to

the verdict to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Adames v. State, 353 S.W.3d 854,

860 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This

standard requires reviewing courts to resolve any evidentiary inconsistencies in favor of

the judgment, keeping in mind that the fact finder is the exclusive judge of the facts, the

credibility of the witnesses, and the weight given to their testimony. Brooks v. State, 323


       2
           See supra note 1.
                                            3
S.W.3d 893, 899 (Tex. Crim. App. 2010).                  In conducting our review, we may not

re-evaluate the weight and credibility of the evidence or substitute our judgment for that of

the fact finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). A fact

finder may support its verdict with reasonable inferences drawn from the evidence, and it

is up to the fact finder to decide which inference is most reasonable. Laster v. State, 275

S.W.3d 512, 523 (Tex. Crim. App. 2009).                   When the record supports conflicting

inferences, we presume that the fact finder resolved the conflicts in favor of the verdict

and defer to that determination. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim.

App. 2012).

        Legal sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge.3 Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009). "Such a charge is 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. As authorized by the indictment in this case, a

person commits the offense of burglary of a building if, without the effective consent of the

owner, the person enters a building or any portion of a building not then open to the

public, with intent to commit a felony, theft, or an assault.                 See TEX. PENAL CODE

ANN. §30.02(a)(1). “Building” means any enclosed structure intended for use. Id. §

30.01 (West 2011).

        It is not necessary that the evidence directly proves the defendant's guilt;

        3
          This standard applies to evidence presented in a bench trial as well as to cases tried to a jury.
See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
                                                    4
"[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of the

actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Kuciemba v. State, 310 S.W.3d 460,

462 (Tex. Crim. App. 2010). Flight can be a circumstance indicating that an accused

knowingly possessed stolen property.         Vela v. State, 771 S.W.2d 659, 662 (Tex.

App.—Corpus Christi 2008, pet. ref’d.) (citation omitted). The falsity of an explanation

may also be shown by circumstantial evidence. Adams v. State, 552 S.W.2d 812, 815

(Tex. Crim. App. 1977). Finally, possession of burglary tools is admissible in burglary

cases as a circumstance from which it may be inferred that such tools were used to

commit the offense. Bordelon v. State, 683 S.W.2d 9, 12 n.3 (Tex. Crim. App. 1985).

       Specifically, evidence of entry is not required; that element may be established by

inference, just as inferences may be used to prove the elements of any other offense.

Lopez v. State, 884 S.W.2d 918, 921 (Tex. App.—Austin 1994, pet. ref’d). A defendant's

unexplained possession of property recently stolen in a burglary also permits an

inference that the defendant is the one who committed the burglary. Rollerson v. State,

227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State, 185 S.W.3d 904, 905 (Tex.

Crim. App. 2006). But if the defendant offers an explanation for his possession of the

stolen property, the record must demonstrate that the account is false or unreasonable.

See Adams, 552 S.W.2d at 815. 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.).




                                              5
                                      III. Discussion

       Appellant asserts that the evidence is insufficient to support his conviction

because there was no direct evidence that he stole the items from the shed. However,

direct evidence of entry is not required and can be established by inference. See Lopez,

884 S.W.2d at 921. There is ample circumstantial evidence proving appellant’s guilt.

       Appellant was found in possession of the property. Paul Sanchez testified that he

would not have left his lawn tools outside and that he was certain the tools had been

stored away in their respective sheds. Even though appellant claimed that the lawn tools

belonged to his niece, whether a defendant’s explanation for possession of stolen goods

is true or reasonable is a question of fact, and here, it was reasonable for the fact finder to

resolve the conflict between the testimony of appellant and the alleged victim in favor of

guilt. See Dixon, 43 S.W.3d at 552.

       Additionally, appellant fled from Officer Sheehan and did not heed his command to

stop. See Vela, 771 S.W.2d at 662. Moreover, at the time of his arrest, appellant was in

possession of items generally considered burglary tools, which is a further circumstance

indicative of guilt. See Bordelon, 683 S.W.2d at 12 n.3.

       In light of the foregoing and deferring to the trial court’s determination of the

credibility of the witnesses and weight of the evidence, we conclude that a rational fact

finder could have found, beyond a reasonable doubt, that appellant entered the alleged

victim’s sheds with the intent to commit theft. See Jackson, 12 S.W.3d at 840; see also

TEX. PENAL CODE ANN. § 30.02(a)(1). The evidence was sufficient to support appellant’s

conviction for burglary of a building. We overrule appellant’s sole issue.

                                              6
                                    IV. Conclusion

       We affirm the judgment of the trial court.


                                                     NELDA V. RODRIGUEZ
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
27th day of June, 2013.




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