                                    NO. 07-08-0038-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                   FEBRUARY 10, 2009

                          ______________________________


                           BENITO RIVERA, JR., APPELLANT

                                              v.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2007-414796; HON. BLAIR CHERRY, PRESIDING

                          _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

                                MEMORANDUM OPINION

       In one issue, appellant Benito Rivera, Jr., contends the evidence is insufficient to

sustain his conviction of burglary of a habitation and the resulting enhanced punishment

of life confinement in the Institutional Division of the Texas Department of Criminal Justice.

Therefore, he argues, it must be reversed. Disagreeing with that contention, we affirm the

judgment of the trial court.

       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2005).
                                      Background

       The trial evidence was that on August 27, 2006, between the approximate times of

9:30 a.m. and 2:00 p.m., Ronald Perdue’s Lubbock home was burglarized. At that time,

Perdue was at a Lubbock hospital caring for his mother. Upon his return home, he noticed

that the back door of his house was “kicked in.” Entering the residence, he discovered

items of personal property, including his guitar, his banjo, their cases, and his mother’s

stereo were missing. Also missing were a leather jacket, a watch, jewelry belonging to his

mother, and one blank check on his business account.

       Trial evidence also showed that Perdue’s banjo and guitar were pawned at Lubbock

pawn shops on August 27 and August 28 respectively. The August 27 pawn ticket showed

that that transaction occurred at 12:29 p.m. Both pawn tickets were signed by a “BJ

Rivera.” Each ticket contained a declaration of the signatory that: “I am the owner of the

pledged goods and/or have the right to possess them. Pledged goods are free and clear

of any encumbrance, lien or claim.”

       The managers of the pawn shops averred that before each of them engaged in a

transaction, they required proof of identification such as a valid driver’s license or a Texas

identification card. Perdue later discovered that his missing business check, bearing the

date of August 27 and made payable to “Benny Rivera,” was forged and presented for

payment. On the face of the check was a notation containing a driver’s license number

and the name “Benny Rivera.” The driver’s license number shown was the same as that

on the two pawn tickets. A handwriting expert testified that the signatures on the pawn

tickets and the check were those of appellant.



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       Appellant’s mother, Sofia Rivera, was appellant’s only trial witness. She averred

that he was living with her at the time in question and that he had broken his ankle

“probably the last weeks of July.” Treatment of the injury required surgery and the

placement of pins and splints on the ankle. During August 2006, she said, appellant could

not drive, used crutches, and could not bear any weight on the leg. That being so, she

reasoned, he would have been unable to kick in a door. She conceded that she had

memory problems, particularly with dates, and she admitted appellant regularly reported

for work as a cement mixer after his injury. She also conceded that appellant “told me a

lot of stuff, you know, to say in court, but I wasn’t going to listen to him.”

                                          Discussion

       A person commits burglary if, without the effective consent of the owner, he enters

a habitation with the intent to commit theft. Tex. Penal Code Ann. §30.02(a)(1) (Vernon

2003). In reviewing issues of legal insufficiency, an appellate court views the evidence in

a light most favorable to the verdict to determine whether a rational fact finder could have

found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101

S.W.3d 89, 95 (Tex. Crim. App. 2003). If, based upon all the evidence, a rational jury must

necessarily entertain a reasonable doubt of the defendant’s guilt, due process requires we

reverse and order an acquittal. Id.

       In performing a factual sufficiency review, we view all the evidence in a neutral light,

giving deference to the fact finder’s determination if supported by the record. We may not

order a new trial simply because we may disagree with the verdict. Watson v. State, 204

S.W.3d 404, 417 (Tex. Crim. App. 2006). As an appellate court, we are not justified in

ordering a new trial unless there is some objective basis in the record demonstrating that

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the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. A

criminal verdict will only be set aside “if the evidence is so weak that the verdict is clearly

wrong and manifestly unjust, or the contrary evidence so strong that the standard of proof

beyond a reasonable doubt could not have been met.” Garza v. State, 213 S.W.3d 338,

344 (Tex. Crim. App. 2007).

       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); Roberson v. State, 16 S.W.3d 156, 164

(Tex. App.–Austin 2000, pet. ref’d). In this case, because appellant is not linked to the

crime by direct evidence, it is our task to determine if the State’s circumstantial evidence

was sufficient to establish appellant’s guilt. See Sutherlin v. State, 682 S.W.2d 546, 548

(Tex. Crim. App. 1984).

       A person’s unexplained possession of recently stolen property permits an inference

that the defendant is the person who committed the burglary. Poncio v. State, 185 S.W.3d

904, 905 (Tex. Crim. App. 2006). However, to warrant an inference of guilt based solely

on the possession of stolen property, the possession must be personal, recent,

unexplained, and involve a distinct and conscious assertion of right to the property by the

defendant. Sutherlin v. State, 682 S.W.2d at 549. If the defendant offers an explanation

for his possession of the stolen property, the record must demonstrate the account is false

or unreasonable. See Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977).

Whether a defendant’s explanation for possession of recently stolen property is true or

reasonable is a question of fact to be resolved by the trier of fact. Dixon v. State, 43



                                              4
S.W.3d 548, 552 (Tex. App.–Texarkana 2001, no pet.). Generally, the shorter the time

between the theft and the possession, the stronger the inference, although the cases will

vary according to such factors as the ease with which such property can be transferred.

Jackson v. State, 12 S.W.3d 836, 839 (Tex. App.–Waco 2000, pet. ref’d),citing Hardage

v. State, 552 S.W.2d 837 (Tex. Crim. App. 1977).

       Here, it is not disputed that appellant signed the pawn tickets of August 27 and 28

pawning Perdue’s property and receiving cash. Additionally, appellant did not counter the

evidence that he forged Perdue’s business check. As we understand it, as an explanation

for his possession of recently stolen property, appellant argues that because his ankle

injury made it impossible for him to “kick in” a door, someone else must have committed

the burglary and delivered the property to him.

       As we have noted, appellant’s only evidence of this explanation was the testimony

of his mother, Sofia, with whom he lived in the summer of 2006. Sofia did indeed opine

that because of his ankle injury, he could not have kicked in the door. However, as we

have noted, she also admitted that she had memory problems, particularly with dates, and

she admitted that appellant had suggested testimony to her. Other than his mother’s

testimony, there was no evidence that appellant was physically incapable of making a

forced entry to Perdue’s residence. Appellant also argues that because he was a patron

of the two pawn shops, had knowledge of their identification procedures, and did not act

suspiciously during the transactions, his behavior indicated a lack of guilt.

       We disagree that the evidence was insufficient to support the jury’s verdict. Initially,

appellant’s claim that he received the property from an undisclosed third party would

require the jury to first accept appellant’s mother’s testimony that her son was physically

                                              5
incapable of gaining entrance to the Perdue house. In assessing the validity of this

conclusion, the jury could have considered the fact that there was no other evidence of

appellant’s claimed physical limitations at the time of the burglary and that appellant’s

mother admitted that she had a poor memory, especially as to dates, and that appellant

had suggested other testimony for her which she refused to provide. Moreover, appellant’s

contention that he did not act suspiciously in the pawn transaction and must, therefore,

have innocently possessed the property, not only does not have evidentiary support, but

was substantially under cut by the undisputed evidence that he possessed, forged, and

presented a check stolen from Perdue. There was also evidence that on the day of the

burglary, he possessed and pawned a banjo stolen from Perdue, as well as evidence that

on the day after the burglary, appellant pawned a stolen guitar. The evidence was

undisputed that appellant did not have permission to enter Perdue’s residence and take

possession of these items.

       In sum, the evidence was amply sufficient to support the jury’s verdict. Accordingly,

appellant’s issue does not demonstrate reversible error. We must, and do hereby, overrule

the issue and affirm the judgment of the trial court.



                                                 John T. Boyd
                                                 Senior Justice

Do not publish.




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