      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00170-CR




                                  James Lee Philpot, Appellant

                                                 v.

                                   The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 00-3259, HONORABLE FRED A. MOORE, JUDGE PRESIDING




               A jury found appellant James Lee Philpot guilty of burglary of a habitation, for which

the court assessed punishment, enhanced by previous felony convictions, at imprisonment for forty

years. See Tex. Pen. Code Ann. § 30.02 (West Supp. 2001). Appellant complains of charge error

and contends the evidence is legally and factually insufficient to sustain the guilty verdict. We will

overrule these contentions and affirm the conviction.

               The complainant returned home from an out-of-town trip to discover that his residence

had been burglarized. Among the items stolen was a bicycle worth approximately $1500. The same

day the burglary was discovered, appellant sold the complainant’s bicycle to a pawnshop for $100.

Appellant was arrested several months later. He had no reaction when told that he was being arrested

for burglary of a habitation.

               The defense called one witness. Patrick Kulp testified that one night a man he did not

know approached him and offered to sell him a bicycle. Kulp gave the man a rock of crack cocaine
in exchange for the bicycle. Later that morning, Kulp offered to sell the bicycle to appellant for $30.

Appellant took the bicycle to a pawn shop, sold it, and gave Kulp $30. Kulp was shown a

photograph of the complainant’s bicycle and said that it resembled the one he sold to appellant,

although the color did not match his previous description. Kulp acknowledged having an extensive

criminal record and was a jail inmate at the time of appellant’s trial.

                In determining the legal sufficiency of the evidence to support a criminal conviction,

the question is 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.

Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.

Crim. App. 1981). A factual sufficiency review asks whether a neutral review of all the evidence,

both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak or

so greatly outweighed by contrary proof as to undermine confidence in the jury’s determination.

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

                There is no question that the complainant’s residence was burglarized. Recent,

unexplained possession of property stolen during a burglary may give rise to an inference of guilt and

be sufficient to support a conviction for the burglary. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex.

Crim. App. 1984). The evidence must show that the defendant’s possession (1) was unexplained,

personal, and recent to the taking, and (2) involved a distinct and conscious assertion of ownership.

Id.

               The evidence shows that appellant sold the stolen bicycle on the very day of the

burglary. This evidence established appellant’s recent and personal possession of property stolen



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during the burglary and involved a distinct and conscious assertion of ownership by appellant. When

told that he was being arrested for burglary, appellant did not assert his innocence or offer the

explanation he asserted at trial. Viewing the evidence in the light most favorable to the prosecution,

we conclude that a rational trier of fact could reasonably infer from the circumstances shown that

appellant entered the complainant’s residence without consent and committed theft. Point of error

one is overruled.

               Even at face value, Kulp’s testimony was not inconsistent with the finding of guilt

because his description of the bicycle he allegedly sold appellant did not match the complainant’s

bicycle, and because he did not specify the date of this alleged transaction. In any event, Kulp was

hardly a credible witness, and the jury was free to disbelieve him. We must maintain appropriate

deference to the jury’s verdict by finding evidence to be factually insufficient only when the record

clearly indicates that the verdict is wrong and manifestly unjust. Johnson, 23 S.W.3d at 9. A decision

is not manifestly unjust merely because the fact finder resolved conflicting views of the evidence in

the State’s favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin 1999, pet. ref’d). Point of

error two is overruled.

               Over appellant’s objection, the district court instructed the jury on the law of parties

and authorized appellant’s conviction if the jury found that he was either the primary actor or a party

to the offense. See Tex. Pen. Code Ann. § 7.02 (West 1994). In his third point of error, appellant

contends there was no evidence to support the theory that he was a party to the burglary and that the

court’s charge was therefore erroneous.




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               We agree that there was no evidence warranting the parties instruction. Contrary to

the State’s argument, Kulp’s testimony did not raise the parties issue. If believed, Kulp’s testimony

showed that appellant was guilty of theft by receiving stolen property. See Tex. Pen. Code Ann.

§ 31.03(a), (b)(2) (West Supp. 2001). The receiver of stolen property is not a party to the original

taking. Reyna v. State, 22 S.W.3d 655, 659 (Tex. App.—Austin 2000, no pet.). The knowing

receipt of stolen property is a separate and distinct offense. Id.

               Although the court erred by instructing on the law of parties, the error does not

warrant reversal. When, as in this case, the evidence clearly supports the defendant’s guilt as the

primary actor, any error in charging on the law of parties is harmless. Ladd v. State, 3 S.W.3d 547,

564-65 (Tex. Crim. App. 1999); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985). Point of error three is overruled.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: November 29, 2001

Do Not Publish




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