                                   NO. 07-01-0387-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     APRIL 24, 2002

                          ______________________________


                        GENARO AGUIRRE LUNA, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B 14062-0105; HONORABLE ED SELF, JUDGE

                          _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       In two issues challenging the legal sufficiency of the evidence, appellant Genaro

Aguirre Luna appeals his conviction of the offense of burglary of a habitation and the

resulting sentence of ten years confinement in the Institutional Division of the Department

of Criminal Justice. We overrule appellant’s issues and, for the reasons set forth, affirm

the judgment of the trial court.
       Appellant argues first that the evidence is not legally sufficient to show that he

entered the premises in question without consent and, second, that there is no evidence

to connect him with the property allegedly stolen from the premises. In considering a legal

sufficiency challenge, we review the evidence in the light most favorable to the verdict and

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, 318-19, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). The State was required to prove that appellant (1) entered

a habitation (2) without the effective consent of the owner Ginny Amador, and (3)

attempted to commit or committed theft of property owned by Amador. See Tex. Pen.

Code Ann. § 30.02(a)(3) (Vernon Supp. 2002). It is the State’s failure to prove the second

and third elements beyond a reasonable doubt that appellant challenges.


       Officer Gregory Beverage with the Plainview Police Department was dispatched on

April 20, 2001, to 602 West 28th Street in Plainview, where Amador resided, to receive a

report of a burglary in which two television sets and a gold watch were stolen. The police

removed latent fingerprints from a window. Amador told Beverage that no one else lived

with her or had access to the house.


       Detective Mitchell Matthews was the lead detective on the reported burglary. A rear

window was broken, and it was his belief that the window was the point of entry by the

burglar due to the fact it was open and the contents of the residence on the inside of the

window had been knocked around. He actually removed the window and lifted latent

fingerprints from both inside and outside the window. He made a comparison of the


                                             2
fingerprints obtained from the window to those of known prints of appellant, which

matched. After determining there was a match of the fingerprints, he located appellant and

questioned him as to whether he had ever been to the residence. He later obtained an

arrest warrant for appellant. The property stolen from the residence was not recovered.


       Matthews admitted that he also lifted several fingerprints from the inside and outside

of the window other than the ones he matched to appellant. Some of those other prints

did not have all the characteristics needed to make a proper comparison due to smudging

or the fact the print did not set. However, the smudges of the other prints he looked at

were consistent with those of appellant.


       Captain Michael Carroll of the Criminal Investigation Division of the Plainview Police

Department assisted Matthews in comparing the fingerprints and making a determination

that they matched. He also showed Amador a photo spread containing a picture of

appellant, but she did not recognize anyone. Additionally, he pointed out a specific picture

of appellant, but she did not know him.


       Amador stated she came home from work on April 19 and noticed the lights were

off, although they had been on when she left. When she went inside, she discovered the

televisions were missing. She later discovered a bracelet and a gold watch were also

missing. Amador denied knowing appellant or that she had ever given him permission to

enter her house. She did not know that the window had been broken in the rear of the

house until the police officer discovered it. She claimed it had not been broken when she

left for work.

                                             3
       Amador admitted that her husband, from whom she was separated at the time of

the burglary, would often have friends over on the weekend to drink, although she believed

she knew his friends. She stated that appellant was not a friend and she had never seen

him prior to being shown his picture in a photograph spread. The Sunday prior to the

burglary, her husband had someone else at the house with him, but she did not know who

it was. She also agreed that the week of the burglary her husband could have come into

the house because he had a spare key. Amador further admitted that she did not know

all of her husband’s friends. Additionally, she told the police officer that only she and her

baby lived in the house.


       Appellant testified that he knew Amador’s husband and that he had been to the

house with him a few days before being arrested. They were there for about 30 minutes

and used some cocaine. He claimed that although Amador’s husband had a key, he could

not get it to work at first, so appellant tried to open the kitchen window when Amador’s

husband warned him it was broken. However, appellant grabbed the window to remove

broken glass from when Amador’s husband allegedly broke it sometime prior to April 19.

These actions caused his fingerprints to be on both the inside and outside of the window.

Appellant also claimed he had been at the house one other time and Amador had seen

him there. He denied taking any property from the house.


       Matthews was recalled on rebuttal to testify that appellant told him he did not know

anyone who lived at the residence or that he had ever been in the residence. Matthews




                                             4
stated appellant did not tell him about the window being broken prior to April 19, or that he

had been doing drugs in the house.


       In his first issue, appellant claims the evidence raises the issue of whether the

complainant’s husband consented to appellant’s entry into the house because there was

no testimony contradicting the fact that the husband had access to the house. When there

is more than one owner of property, the State has to allege and prove ownership in only

one of them. Tex. Code Crim. Proc. Ann. art. 21.08 (Vernon 1989). Further, it has been

held that when the owner testifies entry was without consent, it is not necessary for the wife

of the owner to also state that the entry was without consent. Dykes v. State, 657 S.W.2d

796, 797 (Tex.Crim.App. 1983).


       Lack of consent may be proven by circumstantial evidence. Schenk v. State, 652

S.W.2d 509, 510 (Tex.App.--Houston [1st Dist.] 1983, pet. ref’d). In this instance, there was

direct testimony from Amador that she did not give appellant consent to enter her house,

she did not know him and had never seen him before the burglary, and she did not know

him to be a friend of her husband. There was also contradicting testimony from appellant

that he was acquainted with Amador’s husband, who gave consent to enter the house.

Further, Amador could not state that her husband had not been in the house the week of

the burglary or that she knew all of his friends.


       Appellant relies on Villanueva v. State, 711 S.W.2d 739 (Tex.App.--San Antonio

1986, pet. ref’d), as authority that the evidence is insufficient to show lack of consent. In



                                              5
that case, the owner’s children were residing with her at the time of the burglary. Although

she testified that she did not give the defendant consent, she admitted that he was an

acquaintance of her son David and had been in the house several times. Another son

testified that he saw David and the defendant come into the house the night before and the

next morning saw the defendant run out of the house with a television. The defendant

testified he entered with David’s consent while David himself did not testify. The court

found that the owner’s children were in control and possession of the residence at that

time, and in view of the uncontradicted testimony that the defendant entered with consent,

the State failed to prove lack of consent beyond a reasonable doubt. Id. at 740.


       We believe the facts before us are distinguishable because, in this instance, there

was rebuttal testimony from the police officer that appellant told him he did not know

anyone in the house and had not been in the house, thereby contradicting appellant’s claim

that he knew Amador’s husband and entered the house on two occasions with the consent

of her husband.1 It was within the province of the jury to weigh the conflicting testimony

and determine the credibility of appellant. Thus, Amador’s and Matthews’s testimony, if

believed, was sufficient to show a lack of consent. Appellant’s first issue is overruled.




       1
        The State argues that a marital relationship does not authorize a husband to enter
premises occupied by an estranged wife in reliance on Stanley v. State, 631 S.W.2d 751
(Tex.Crim.App. 1982), but in that case, the estranged wife had filed for divorce, moved out
of the marital residence and set up a separate residence for herself and her son. Id. at
753.

                                             6
       In his second issue, appellant asserts the evidence is legally insufficient to prove he

attempted to commit or committed theft. He argues there is no evidence to connect him

with any stolen property because none was recovered, no one saw him with any stolen

property, and he did not have any cash or drugs on him at the time of his arrest. The

evidence only shows his presence at the scene of the crime which, he posits, is not

sufficient to support a conviction.


       It is true that the mere presence of an accused at the crime scene will not support

a conviction, but it is a circumstance tending to prove guilt which, when combined with

other facts, may suffice. Johnson v. State, 537 S.W.2d 16, 18 (Tex.Crim.App. 1976). As

already noted, there were no witnesses to the burglary, appellant was not observed at the

crime scene, and none of the stolen items were found in appellant’s possession. Evidence

was presented that appellant’s fingerprints were found both inside and outside a window

that the complainant testified had not been broken prior to her leaving for work. Items

immediately by the window on the inside of the house were “knocked around.” Several

pieces of property, including two television sets, were also missing when the complainant

returned from work.


       There is a line of cases holding that fingerprint evidence is sufficient to sustain a

conviction if the evidence shows that the prints were necessarily made at the time of the

burglary. Bowen v. State, 460 S.W.2d 421, 423 (Tex.Crim.App. 1970); Dues v. State, 456

S.W.2d 116, 117 (Tex.Crim.App. 1970); Guzman v. State, 732 S.W.2d 683, 685 (Tex.App.

--Corpus Christi 1987, no pet.). The Court of Criminal Appeals has since abandoned the


                                              7
standard of review in effect at the time Bowen and Dues were decided, which was that

evidence is insufficient to support a conviction if there exists a reasonable hypothesis other

than appellant’s guilt. The standard of review we must use is that which we have already

explicated and its state progeny.


       The evidence is undisputed that appellant’s fingerprints were found on both the

outside and inside of the window. Appellant offered an explanation at trial for the presence

of his fingerprints. This explanation included a statement that the window had been broken

for some time prior to the date of the burglary, which the complainant denied, and that he

had been previously seen by the complainant in the house with her husband, which she

also denied. There was also evidence that appellant claimed to police he never had been

inside the house or to have known the persons living there. Thus, the jury had before it

conflicting evidence as to whether the prints were made at the time of the burglary or some

other time. However, the evidence in the light most favorable to the verdict would allow a

rational trier of fact to find appellant committed a theft. Appellant’s second issue is

overruled.


       Having overruled both of appellant’s issues, we affirm the judgment of the trial court.



                                                  John T. Boyd
                                                   Chief Justice

Do not publish.




                                              8
