                                 NO. 07-10-00441-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  AUGUST 29, 2012


                        ALLEN DWAYNE BATES, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


          FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

            NO. 126,532-1; HONORABLE W. F. (CORKY) ROBERTS, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant Allen Dwayne Bates appeals from his conviction by jury of the

misdemeanor offense of burglary of a vehicle and the resulting sentence of 365 days in

the Potter County Jail and a fine of $4000.      Appellant challenges the trial court’s

judgment through three issues. We will affirm.


                                      Background


      Appellant was charged by complaint and information with burglary of a vehicle. 1

He plead not guilty. Thereafter, the court heard pretrial motions, including appellant’s

      1
          See Tex. Penal Code Ann. § 30.04 (West 2010).
motion to suppress. The court denied the motion, and the case proceeded to trial before

a jury.


          The evidence at trial showed that on a cold evening in January 2010, a diner at

Amarillo Country Club heard the sound of glass breaking in the Club’s parking lot. An

employee called 911 while others ran to the parking lot. They saw a tall person in dark

clothing reaching into a vehicle, later determined to be that of a Club employee. The

person ran away. A passenger window of the vehicle was broken, the inside of the

vehicle was covered in glass, and the employee’s purse was gone. Its contents had

included credit cards and other such items, $20 cash and the employee’s driver’s

license.


          Two Amarillo police officers responded to the dispatch following the 911 call. As

Officer Clayton approached the area, he turned from Western Street onto the street

running in front of the Club’s entrance. He saw only one person in the area, appellant,

who was walking east, wearing dark clothing.         The officers detained appellant. He

produced a wallet but told the officers he had no identification. A patdown resulted in the

discovery of a hammer, found tucked into the front of appellant’s waistband. The officers

continued searching appellant for weapons. They found a flashlight in his left pants

pocket, and found credit cards bearing the Club employee’s name in his right pocket.


          Appellant was arrested. About two weeks later, the purse was found on the roof

of a building across the street from the Club. The cash and several credit cards were

missing from the purse.



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                                         Analysis


      Appellant’s motion to suppress argued the evidence found on his person was

obtained in violation of his rights under the Fourth Amendment to the United States

Constitution and Article One, Section Nine of the Texas Constitution. U.S. amend. IV;

Tex. Const. art. 1, § 9. In his argument on appeal, appellant does not challenge his

initial detention by the officers, or the initial patdown search and seizure of the hammer

located by the patdown. His contention is that the credit cards the officers located in his

pants pocket should have been suppressed.


      Although the State does not argue on appeal that appellant’s contention was not

preserved for our review, error preservation is a systemic requirement that we must

review sua sponte. Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005).


      A defendant who files a pre-trial motion to suppress evidence and obtains a

ruling on the admissibility of the evidence need not object every time the evidence is

offered at trial to preserve error. Tex. R. Evid. 103(a)(1); Moraguez v. State, 701 S.W.2d

902, 904 (Tex.Crim.App. 1986). “However, when the defendant affirmatively asserts

during trial he has “no objection” to the admission of the complained-of evidence, he

waives any error in the admission of the evidence despite the pre-trial ruling." Id.; see

Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App. 2005); Maldonado v. State, No.

05-09-00383-CR, 2011 Tex.App. LEXIS 1984, at *6-8 (Tex.App.—Dallas March 18,

2011, no pet.) (mem. op., not designated for publication).


      Here, the Club employee victim identified at trial each of the cards found on

appellant’s person. The State offered its exhibit, copies of the cards, into evidence.
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Appellant’s counsel affirmatively stated, “No objection, Your Honor.” The court admitted

the exhibit and appellant’s counsel reiterated appellant had “[n]o objection.” Because

appellant affirmatively asserted he had no objection when the evidence was admitted at

trial, he has waived any error in its admission. Appellant’s first two issues present

nothing for our review, and are overruled.


Sufficiency of the Evidence


      By appellant’s third issue, he contends the evidence presented at trial is

insufficient to support his conviction for the offense of burglary of a vehicle.       We

disagree with appellant’s contention and find the evidence sufficient.


      Evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational factfinder could have

found each essential element of the charged offense was proven beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979); Brooks v. State, 323 S.W.3d 892, 912 (Tex.Crim.App. 2010); Laster v. State,

275 S.W.3d 512, 517 (Tex.Crim.App. 2009).


      Circumstantial 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); Kuciemba v. State, 310

S.W.3d 460, 462 (Tex.Crim.App. 2010). "[T]he standard of review on appeal is the same

for both direct and circumstantial evidence cases." Kuciemba, 310 S.W.3d at 462

(quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)). Further, the law

does not require that each fact "point directly and independently to the guilt of the
                                             4
appellant, as long as the cumulative effect of all the incriminating facts is sufficient to

support the conviction."    Hooper, 214 S.W.3d at 13.         So long as "the verdict is

supported by a reasonable inference, it is within the province of the fact-finder to choose

which inference is most reasonable." Laster, 275 S.W.3d at 523.


       Burglary can be proven solely through circumstantial evidence. Hooper, 214

S.W.3d at 14-15. A person commits burglary of a motor vehicle if, without the effective

consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with

intent to commit any felony or theft. Tex. Penal Code Ann. § 30.04(a) (West 2010). A

defendant’s unexplained possession of property recently stolen in a burglary 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).


       Appellant was found in the unexplained possession of the credit cards that had

been contained in the purse taken from the victim’s vehicle within minutes of his

apprehension. Based on the evidence it heard, the jury also could have concluded that

he possessed a hammer; that on the hammer were tiny shards of glass; that only one

person ran from the parking lot and that person ran in an easterly direction from the

Club’s entrance; that officers shortly located appellant walking that direction, about three

blocks from the Club’s entrance; that no other person was seen in the area; and that the

purse later was found atop a building along the route between the Club entrance and

appellant’s location when apprehended.


       Appellant points out no one testified he was out of breath when the officers

approached him, and no one testified footprints in the snow lead from that location back

                                             5
to the country club or near the roof where the purse was later found. He also disputes

the testimony that the hammer bore shards of glass, arguing that vehicle windows are

safety glass and do not break into shards. Lastly, appellant argues reasonable doubt of

his guilt is created by the fact he was not found with all of the stolen property, notably

the $20 cash, which was never recovered.


       The jury is the judge of the witnesses’ credibility. Fuentes v. State, 991 S.W.2d

267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve all or any

part of the testimony presented.           Johnson v. State, 871 S.W.2d 744, 748

(Tex.Crim.App. 1994). The Jackson evidentiary sufficiency “standard gives full play to

the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson, 443 U.S. at 319.


       It was the jury’s responsibility here to evaluate the evidence it saw and heard.

Viewing all the evidence in the light most favorable to the jury’s verdict, we conclude a

rational jury could have found each essential element of the charged burglary was

proven beyond a reasonable doubt. Brooks, 323 S.W.3d at 912. The evidence was

sufficient. We overrule appellant’s final issue and affirm the judgment of the trial court.




                                                         James T. Campbell
                                                             Justice




Do not publish.
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