                                    NO. 12-13-00118-CR

                            IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

ANTHONY SHANE HARBER,                              §      APPEAL FROM THE 114TH
APPELLANT

V.                                                 §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §      SMITH COUNTY, TEXAS

                                    MEMORANDUM OPINION
          Anthony Harber appeals his conviction for burglary of a habitation. In one issue on
appeal, Appellant challenges the legal sufficiency of the evidence to support his conviction. We
affirm.


                                           BACKGROUND
          Appellant was charged by indictment with burglary of a habitation, a second degree
felony. Appellant pleaded “not guilty,” and the case proceeded to a jury trial. At the conclusion
of the trial, the jury found Appellant guilty of burglary of a habitation as charged in the
indictment, and assessed his punishment at eighteen years of imprisonment.             This appeal
followed.


                                        LEGAL SUFFICIENCY
          In his sole issue on appeal, Appellant argues that the evidence is legally insufficient to
support his conviction.
Standard of Review and Applicable Law
          In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). This standard gives full play to
the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Padilla v. State,
326 S.W.3d 195, 200 (Tex. Crim. App. 2010).
       When the record supports conflicting inferences, we presume that the factfinder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are
treated equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). A conclusion of guilt can rest on the combined
and cumulative force of all the incriminating circumstances. Hernandez v. State, 190 S.W.3d
856, 864 (Tex. App.—Corpus Christi 2006, no pet.).
       A person commits the offense of burglary of a habitation if, without the effective consent
of the owner, the person enters a habitation with the intent to commit a felony, theft, or an
assault. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). Direct evidence of entry is not
required. Hernandez, 190 S.W.3d at 865. Entry may be established by inference, just as
inferences may, and often must, be used to prove the elements of an offense. Id. The specific
intent to commit theft may be inferred from the circumstances. Stine v. State, 300 S.W.3d 52, 57
(Tex. App.—Texarkana 2009, pet. dism’d, untimely filed) (citing McGee v. State, 774 S.W.2d
229, 234 (Tex. Crim. App. 1989)).
Analysis
       The evidence shows that on July 5, 2012, Rex Thompson left his house located in Smith
County, Texas, at approximately 10:00 a.m. When he returned at 12:30 p.m., his garage door
was open, and cash, twenty-nine handguns and rifles, and other personal property had been
stolen. The record shows that law enforcement did not find any fingerprints in the house, and
none of the stolen property was located or recovered.




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       The only evidence connecting Appellant to the burglary was a cell phone discovered
under a china cabinet in Thompson’s dining room and a light blue Ford Ranger pickup that a
witness saw parked at Thompson’s house the morning of the incident. The record establishes
that Appellant did not have permission to enter Thompson’s house. However, Appellant argues,
the evidence is not legally sufficient to prove the other elements of burglary of a habitation, i.e.,
that he entered, or attempted to enter, the house, or that he had the intent to commit theft or
committed theft.
Cell Phone
       Before law enforcement arrived at Thompson’s house, Thompson’s grandson found a cell
phone under the china cabinet in the dining room. The cell phone did not belong to Thompson
or anyone else at his residence. A Smith County Sheriff’s Office patrol officer called the last
number dialed on the cell phone. The officer testified that Fred Rowan answered and informed
her that she was calling from Appellant’s cell phone.
       Fred Rowan testified that Appellant was his client and was required to give him personal
information, including telephone numbers and addresses. Appellant was also required to call
him once a week. On June 18, June 25, and July 2, 2012, Appellant called Rowan from a cell
phone number that matched the number of the cell phone found in Thompson’s home. On July 9,
2012, Appellant called Rowan on a different number and never called him from the first cell
phone number again.
       Jim Fortner, a detective with the Smith County Sheriff’s Office, testified that a forensic
examination and download of the cell phone included text messages from July 4 and July 5,
2012. The last outgoing text message was on July 5, 2012, at 10:29 a.m. After this message,
there were several incoming text messages that “show[ed] to be unread.” Fortner stated that the
last telephone call occurred on July 5, 2012, at 9:01 a.m. to Rowan. However, he conceded that
if a cell phone is stolen, someone else could send text messages and make telephone calls as long
as the cell phone remained active.
       The State suggests, and we agree, that the cell phone evidence in this case is “somewhat
akin” to evidence of a fingerprint being found at the scene of a burglary. This is because cell
phones and fingerprints contain identifying information specific to an individual. For example, a
cell phone may contain contact information, photographs, text messages, and phone logs from
which the owner’s identity can be determined.



                                                 3
       When evaluating the legal sufficiency of the evidence in burglary cases, the court of
criminal appeals has said that “the fingerprints of an accused, which necessarily must have been
made at the time of the burglary, are sufficient to sustain a conviction without further
identification evidence.” Clayton, 235 S.W.3d at 779 (quoting Phelps v. State, 594 S.W.2d 434,
435 (Tex. Crim. App. 1980)). In burglary cases, fingerprints constitute direct evidence of the
ultimate fact to be proved—illegal entry. Id. When examining burglary cases in which the only
proof of identification is fingerprint evidence, we must consider whether the fingerprint could
have been left at another time. Jones v. State, 936 S.W.2d 678, 680 (Tex. App.—Dallas 1996,
no writ).
       Here, similar to a fingerprint, the phone number for the cell phone found in Thompson’s
house was identified by Rowan as being Appellant’s. A forensic examination of the cell phone
showed four telephone calls to Rowan, including one on the morning of the burglary. However,
after the burglary, Appellant never called Rowan from that cell phone number again. Further, the
cell phone did not belong to anyone at Thompson’s house, and there is no evidence that
Appellant and Thompson were acquainted or that Appellant had ever been in Thompson’s house.
Thus, Thompson’s house was not accessible to Appellant at any other time and the cell phone
could not have been left at the house at any time other than during the burglary. See Clayton,
235 S.W.3d at 779; Jones, 936 S.W.2d at 680.
Light Blue Pickup
       The other piece of evidence connecting Appellant to the burglary was a light blue Ford
Ranger pickup. Thomas Sealy testified that on the day of the burglary, he was working near
Thompson’s house and at approximately 11:00 a.m., noticed a vehicle at the house. He did not
recognize the vehicle and described it as an early model, light blue Ford Ranger pickup. Sealy
stated that the pickup was backed up to the garage. He did not see anyone come out of the
garage or notice when the pickup left Thompson’s house.
       According to Detective Fortner, Appellant had been seen in a blue Ford Ranger pickup.
One person told Fortner that he knew Appellant’s girlfriend, Amanda Claitor. That witness also
informed the detective that Appellant drove a blue Ford Ranger, and recalled seeing him driving
the pickup less than a week after the burglary. According to Fortner, Joshua Garth Claitor,
Amanda’s brother, told him that Appellant had been driving the blue Ford Ranger, but was now




                                               4
driving another vehicle.1 Fortner was never able to speak to Jason Craft, the owner of the
pickup, even though he attempted to do so several times.
         Claitor testified that his sister, Amanda, was Appellant’s girlfriend. He testified that
Amanda lived in a duplex with Craft, the owner of an older model, light blue Ford Ranger
pickup. He stated that Craft parked his pickup at an abandoned gas station when he drove his
eighteen-wheeler truck. Claitor stated that on at least one occasion, he had borrowed the pickup.
He said the pickup was unlocked and the keys were inside it.
         Appellant points out that no one saw him at or near Thompson’s home, and that he was
not found in possession of the stolen property. However, such evidence is not necessary to
support a conviction for burglary of a habitation with intent to commit theft. See In re M.A.L.,
224 S.W.3d 233, 236 (Tex. App.—El Paso 2005, no pet.) (“Despite [the appellant’s] contentions,
the State was not required to show there were witnesses to the crime or that [appellant] was
found in possession of the stolen items.”).
         Appellant also contends that there is no evidence that he owned the pickup or drove it the
day of the burglary. However, there was testimony that Appellant had been seen driving the
pickup both before and after the burglary. We presume that the jury resolved the conflict
between Claitor’s prior statement to Fortner and his testimony in favor of Appellant and defer to
that determination. See Clayton, 235 S.W.3d at 778.
Conclusion
         The jury reasonably could have found from the cell phone evidence that Appellant was
at, and in, Thompson’s house on the day of the burglary. The testimony that a light blue Ford
Ranger pickup was parked at Thompson’s house, when considered with the testimony that
Appellant had been driving a pickup of the same description, provides further support for the
jury’s finding that Appellant entered the house on the day of the burglary. The cumulative force
of these incriminating circumstances, along with the absence of any connection between
Appellant and Thompson, supports an inference that Appellant entered Thompson’s house with
the intent to commit theft. See Hooper, 214 S.W.3d at 13. Therefore, the jury reasonably could
have found the essential elements of burglary of a habitation beyond a reasonable doubt. See
TEX. PENAL CODE ANN. § 30.02(a)(1). Accordingly, we overrule Appellant’s sole issue.


         1
          At trial, Claitor testified that he did not recall telling law enforcement that he had seen Appellant driving
the Ford Ranger, and denied ever seeing Appellant drive it.


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                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.



                                                                  BRIAN HOYLE
                                                                     Justice



Opinion delivered November 21, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         NOVEMBER 21, 2013


                                          NO. 12-13-00118-CR


                                   ANTHONY SHANE HARBER,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-1718-12)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
