                                     NO. 07-03-0237-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                     FEBRUARY 4, 2005

                            ______________________________


                   MILO WILLIAMS AKA JON THOMPSON, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE


                          _________________________________

              FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                  NO. 13,686-C; HONORABLE JACK D. YOUNG, JUDGE

                           _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                                 MEMORANDUM OPINION


      Following a plea of not guilty, appellant Milo Williams, aka Jon Thompson, was

convicted by a jury of burglary of a habitation, enhanced, and punishment was assessed

at 60 years confinement and a $5,000 fine. Presenting four points of error, appellant


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          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
maintains the evidence is (1) legally and (2) factually insufficient to support a finding of guilt,

(3) the trial court erred in denying his requested charge for a lesser included offense, and

(4) the State failed to prove that venue was proper. We affirm.


       On March 27, 2001, between 7:30 a.m. and 7:45 a.m., Jerry Kochaniuk left home

to go to work. At approximately 10:00 a.m., his daughter entered the home through the

rear entry garage and discovered the house had been ransacked. She immediately went

to a neighbor’s house to call her father. Jerry called the police to report a possible burglary

and met them at the residence. Officers noticed a screen from a window at the back of the

house out of place. Jerry testified that his wife kept their home neat and clean and that

when he left for work, everything was in place. However, when he and investigating

officers walked through the house they discovered things in disarray with items knocked

down, drawers overturned, things out of place, and cabinets and closets open. An old cigar

box from Jerry’s college days that was usually stored on the top shelf of an armoire was

on the bed. It was not regularly handled, but was occasionally dusted. Jerry’s shotgun and

another he had borrowed from a friend were missing from the master bedroom closet.


       The scene was processed and trained officers dusted for fingerprints. A sufficient

fingerprint from the cigar box was checked on an automated fingerprint identification

system that produced a list of possible candidates for comparison. The result showed Jon

Thompson as the person who contributed the fingerprint on the cigar box, and further

investigation revealed a match to Milo Williams as the same person. A palm print taken


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from a window sill and other fingerprints lifted from items that appeared handled were not,

however, a match.


       By his first two contentions, appellant challenges the legal and factual sufficiency of

the evidence to support his conviction. When both the legal and factual sufficiency of the

evidence are challenged, we must first determine whether the evidence is legally sufficient

to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a

fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown

beyond a reasonable doubt that the defendant committed each element of the alleged

offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.

2004-05); Tex. Pen. Code Ann. § 2.01 (Vernon 2003). In conducting a legal sufficiency

review, we examine the verdict, after viewing the evidence in the light most favorable to the

prosecution, to determine whether 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, 573 (1979); Burden v. State, 55 S.W.3d 608, 612-13

(Tex.Cr.App. 2001). This standard is the sam e in both direct and circumstantial evidence

cases. Burden, 55 S.W.3d at 612-13. In measuring the sufficiency of the evidence to sustain

a conviction, we measure the elements of the offense as defined by a hypothetically correct

jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997). This is done by

considering all the evidence that was before the jury—whether proper or improper—so that

we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511,

512 (Tex.Cr.App. 1996). As an appellate court, we may not sit as a thirteenth juror, but

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must uphold the jury's verdict unless it is irrational or unsupported by more than a mere

modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis, 922 S.W.2d at 133. As an appellate court, we view all

the evidence without the prism of in the light most favorable to the prosecution and set

aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to

be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). It is

the exclusive province of the jury to determine the credibility of the witnesses and the

weight to be given their testimony, and unless the record clearly demonstrates a different

result is appropriate, we must defer to the jury’s determination. Id. at 8.


       Before determining whether the evidence is legally sufficient to sustain the

conviction, we must review the essential elements the State was required to prove. A

person commits the offense of burglary of a habitation if he enters a habitation without the

consent of the owner and commits or attempts to commit a felony, theft, or an assault. Tex.

Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). In circumstantial evidence cases it is not

necessary that every fact point directly and independently to the accused's guilt; it is

enough if the conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993),

cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 222 (1994); Armstrong v. State,

958 S.W.2d 278, 283 (Tex.App.--Amarillo 1997, pet. ref'd).


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       Where, as here, the State did not prove that appellant was in possession of the

stolen shotguns nor was there any eye witness testimony that appellant burglarized the

home, for the conviction to stand, it must do so solely on the fingerprint evidence. See

Bowen v. State, 460 S.W.2d 421, 423 (Tex.Cr.App. 1970). Fingerprint evidence alone is

sufficient to sustain the conviction if the evidence shows appellant’s print from the cigar box

was necessarily made at the time of the burglary. Phelps v. State, 594 S.W.2d 434, 435

(Tex.Cr.App. 1980); see also Gomez v. State, 905 S.W.2d 735, 740 (Tex.Cr.App. 1995),

aff’d, 962 S.W.2d 572 (Tex.Cr.App. 1998).


       Jerry and his daughter both testified that neither of them knew appellant and he did

not have permission to be in their home. Although only one fingerprint on a cigar box that

had been moved from the top shelf of an armoire indicated appellant’s presence in the

home, the condition of the home indicated his intent to commit theft. Intent may be inferred

from the events of the burglary and surrounding circumstances. McGee v. State, 923

S.W.2d 608 (Tex.App.–Houston [1st Dist.] 1995, no pet); see also Dues v. State, 634

S.W.2d 304, 305 (Tex.Cr.App. 1982). A window screen at the rear of the home had been

removed and inside the home drawers had been overturned, items knocked over, closets

and cabinets opened, and stored suitcases had been moved. Jerry testified that his

shotgun and another he had borrowed from a friend were missing from the bedroom closet.

The evidence presented by the State is legally sufficient to support appellant’s conviction.

Point of error one is overruled.




                                              5
        Officer Jimmy Rifenberg testified about the procedure for lifting latent fingerprints

and explained that it is not possible to date a print. Jerry testified that Mrs. Kochaniuk

dusted on a regular basis and the cigar box was not handled much.                   One of the

investigating officers testified that a well dusted area is more suitable for lifting sufficient

prints. Jerry and his daughter testified they were not acquainted with appellant. The

evidence negates the possibility that the fingerprint on the cigar box was made prior to the

time of the burglary and supports the jury’s finding that it was necessarily made at the time

of the burglary. The combined and cumulative force of the evidence is factually sufficient

to support appellant’s guilt. Point of error two is overruled.


       By his third point, appellant alleges the trial court erred in denying his requested

instruction that the jury charge include the lesser included offense of criminal trespass. We

disagree.   The decision whether to include an instruction on a lesser included offense

requires a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Cr.App. 1993),

cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). First, the lesser

included offense must be included within the proof necessary to establish the offense

charged, and second, there must be some evidence that would permit a rational jury to find

that if the defendant is guilty, he is guilty only of the lesser offense. Id.; see also Tex. Code

Crim. Proc. Ann. art. 37.09 (Vernon 1981).


       As previously noted, burglary of a habitation occurs when a person, without the

effective consent of the owner, enters a habitation and commits or attempts to commit a


                                               6
felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). A person

commits criminal trespass if he enters or remains on or in property of another without

effective consent and had notice that the entry was forbidden or received notice to depart

but failed to do so. § 30.05(a). Criminal trespass is a lesser included offense of burglary.

See Day v. State, 532 S.W.2d 302, 306 (Tex.Cr.App. 1975); see also Wyble v. State, 764

S.W.2d 927, 929 (Tex.App.–Amarillo 1989, pet. ref’d). Thus, the first prong of Rousseau

is satisfied.


       In order to meet the second prong of the Rosseau analysis, there must be some

evidence in the record that appellant is only guilty of criminal trespass. Officer Chris

McGilvery’s investigation revealed that two Hispanic males had been seen in the vicinity of

the Kochaniuk residence on the day of the burglary. Even though no identification was ever

made, appellant argues they could have committed the burglary and the jury was denied the

opportunity to so conclude. He further asserts that because no stolen property was

connected to him he is only guilty of criminal trespass. Burglary, however, may be proved

by circumstantial evidence and the State is not required to prove a defendant possessed the

stolen property. See Groome v. State, 957 S.W.2d 919, 922 (Tex.App.–Texarkana 1997,

no pet.).


       The evidence does not support a conclusion that appellant was only guilty of the

lesser included offense of criminal trespass. The events of the burglary, i.e., the house

being ransacked, and his fingerprint on an out-of-place cigar box indicate that appellant


                                             7
entered the Kochaniuk residence with intent to commit theft and, in fact, a theft was

committed–two shotguns were taken from the bedroom closet. Thus, the second prong of

Rosseau is not demonstrated by the evidence and the trial court did not err in refusing to

instruct the jury on the lesser included offense of criminal trespass. Point of error three is

overruled.


       By his final contention, appellant claims the State failed to prove venue was proper

in Randall County, Texas. We disagree. Venue is a place where a case may be tried. Ex

parte Watson, 601 S.W.2d 350, 351 (Tex.Cr.App. 1980). It is not a constituent element of

the offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Cr.App. 1981). The burden is on

the State to prove venue by a preponderance of the evidence and it may be established by

direct or circumstantial evidence. Black v. State, 645 S.W.2d 789, 790 (Tex.Cr.App. 1983);

see also Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977). Article 13.14 of the Code

provides in relevant part:


       An offense committed on the boundaries of two or more counties, or within
       four hundred yards thereof, may be prosecuted and punished in any one of
       such counties . . . .


       Texas courts judicially recognize that Amarillo lies in both Randall and Potter

Counties. Bruce Campbell & Son Const. Co., Inc. v. Britton Drive, Inc., 527 S.W.2d 852,

854 (Tex.App.–Waco 1975, no writ). Jerry testified that most of his home is located in

Randall County and that he pays taxes and votes in Randall County. His daughter testified

the home is located in Randall County. Under the preponderance of evidence standard, the

                                              8
evidence is sufficient to support that venue was proper in Randall County. See generally

Knorpp v. State, 645 S.W.2d 892, 900 (Tex.App.–El Paso 1983, no writ). Point of error four

is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                          Don H. Reavis
                                            Justice


Do not publish.




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