

Opinion filed November 17,
2011
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-09-00346-CR 
                                                    __________
 
                       VIRGIL
LEONARD DUNCAN, JR., Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 385th District Court
 
                                                           Midland
County, Texas
 
                                                   Trial
Court Cause No. CR35806 
 

 
                                            M
E M O R A N D U M   O P I N I O N
            Appellant,
Virgil Leonard Duncan, Jr., was indicted for the offense of burglary of a
habitation in eight counts.  Each count related to a burglary at a different
home and alleged an enhancement paragraph regarding appellant’s prior felony
conviction for evading arrest.  The State subsequently abandoned counts 1, 3,
and 7.  Appellant entered a plea of “not guilty.”  The jury found appellant not
guilty in count 2 but guilty of the felony offense of burglary of a habitation in
counts 4, 5, 6, and 8.  Based on the jury’s findings of guilt, the trial court
sentenced appellant to fifteen years in the Institutional Division of the Texas
Department of Criminal Justice in each count.  The sentences are to run
concurrently.   
            In
appellant’s one issue on appeal, he argues that the evidence was legally and
factually insufficient to convict him of the felony offense of burglary of a habitation. 
We affirm.
Background
Facts
            During
January 2009, there were a number of residential burglaries on the northeast
side of Midland.  The counts in appellant’s indictment included the home of
Irma Briggs at 1723 Maple (count 2), the home of Tamara Riojas at 813 West
Spruce (count 4), the home of Stanley O’Neal at 104 West Shandon (count 5), the
home of Angela Sanchez at 417 East Shandon (count 6), and the home of Mary
Armendarez at 4312 Crenshaw (count 8).  
Detective
Manuel Beltran, who investigated the burglaries, testified that the burglaries
followed a pattern.  The burglaries would occur in the early morning or early
afternoon.  Detective Beltran first encountered appellant in an alley very near
4312 Crenshaw shortly after an attempted burglary at that address.
At
around eleven in the morning on January 26, 2009, the police received a call about
an attempted burglary by two men at 4312 Crenshaw.  The caller described one
man as being black and the other as possibly being Hispanic.  Armendarez, the
owner of the home, had first heard someone banging on her door.  She looked
through the blinds in her bedroom and saw two men walking on the sidewalk. 
After calling her neighbor and leaving a message about the banging on her door
and the two men, Armendarez then went to her kitchen and saw one of the men coming
in the kitchen window.  His arms and head were already in the window.  Armendarez
screamed at him that she was calling the police.  After Armendarez screamed,
the man left.  Because the man had a light complexion, Armendarez thought he
was Hispanic.  She dialed her neighbor again who then called the police.
   
Detective Beltran arrived at the Armendarez residence minutes after the police
received the call.   Armendarez pointed in the direction that the men had gone,
and Detective Beltran went that way for about one hundred and fifty feet when
he encountered appellant, a dark, African-American male.  As Detective Beltran
approached appellant, appellant told him that he was not the one Detective
Beltran was looking for.  Appellant said he was just there to whistle.  Detective
Beltran understood that to mean that he was a lookout.  Appellant told the
detective that he was on the way to the mall to buy some shoes when Eric Ray Post
and a Hispanic male told him that they were “going to do a lick” (break into
house) and that all he had to do was whistle if he saw the police.  Appellant said
that the white male, Post, was one of the two men involved in the burglary at
4312 Crenshaw and that Post lived at the Ranchland Apartments.  Leaving
appellant in the custody of another officer, Detective Beltran went to look for
the other man.
Other
officers were pursuing an individual east of Airpark.  When Detective Beltran arrived
in that area, the officers had Joshua Nichols in custody.  Detective Beltran
recognized Nichols, a light-skinned African-American, as someone he knew.  Nichols
was cooperative and gave a statement to Detective Beltran about his involvement
in the burglaries.  Nichols told Detective Beltran that the only other person
involved in the burglaries was appellant.  After taking Nichols’s statement,
Detective Beltran changed the status of appellant from witness to codefendant.
 Appellant
had rings on his fingers that belonged to a family named Briggs who lived at
1723 East Maple.  One of the rings had the name “Briggs” inside the band.  Appellant
also had in his possession a unique, little cupid angel holding a heart with a
cross pendant and a gold crucifix with a chain.  Officers identified these
items as belonging to Angela Sanchez at 417 East Shandon.  Detective Beltran
also identified two black gloves that had been in appellant’s bag.
At
police headquarters, Detective Beltran placed Nichols and appellant in the same
room in an attempt to determine if Post existed and if he was part of the
offense at 4312 Crenshaw.  He did this because Nichols told him that Post was
not involved. Nichols confirmed that conversation with appellant, saying that
he told appellant to come clean and tell the police that no one named Post was
involved.  Appellant subsequently told Detective Beltran that Post was not
involved in the attempted burglary at 4312 Crenshaw.  That was after Nichols
confronted appellant in Detective Beltran’s presence and told appellant, “Don’t
involve somebody who doesn’t need to be involved.”
            Post
testified at trial and denied any knowledge of the burglaries.  Post admitted
that he met appellant a couple of times when he lived at the Santa Fe
Apartments because appellant hung out with Post’s friend.  Post said he was not
anywhere near 4312 Crenshaw on January 26, 2009.  The State also called Jerry
Ewing, the owner of Ewing Landscape, as a witness.  He testified that Post was
an employee of his and that his employee records showed that Post was at work
for him on January 26, 2009.  Ewing said that Post was a reliable employee.
            Detective
Beltran checked a national database of pawned property where officers can see
if an individual has pawned property anywhere in the United States.  He found
that appellant had pawned some of the stolen property at Cash America Pawn on
North Big Spring Road.  He also determined that appellant had attempted to pawn
a laptop computer but that Cash America Pawn refused the laptop.  After
reviewing appellant’s pawn tickets at Cash America Pawn, Detective Beltran
retrieved some game cartridges, a man’s ring, a lady’s ring that had the name
“Irma on it,” a Nintendo video game system, and some other jewelry.  Briggs
identified her husband’s ring that appellant had pawned.  Angelica Morales, the
manager at Cash America Pawn, confirmed the items that had been pawned by
appellant.
            When
confronted with the pawned items and the stolen items in his possession,
appellant told Detective Beltran that he would plead to being in possession of
stolen property, but not to burglary because burglary is a felony.  Appellant had
claimed that some of the stolen property had been given to him by his
girlfriend a long time ago and that some of the property belonged to his
cousin.  But the property he claimed was from his girlfriend was property that
belonged to Sanchez and had been reported stolen that day.  Appellant admitted
to Detective Beltran that he had tried to pawn a laptop and was turned down.  In
his testimony, Nichols confirmed that he gave appellant the laptop to pawn
because he did not have an identification card.  When the pawnshop turned
appellant down, Nichols said they put the laptop and the stolen bag of clothes
in a dumpster near the pawnshop.
            The
initial description given to Detective Beltran of the dark African-American was
that he was a black male in his twenties wearing a black, short-sleeved shirt
with a white, long-sleeved shirt underneath it.  Armendarez said that appellant
was wearing a white shirt when the officers found him but that earlier he was
wearing a black jacket. When the detective encountered appellant, appellant was
dressed all in white. But another officer told Detective Beltran that he
had found a jacket and a wallet by a dumpster, and he gave them to Detective
Beltran.  The wallet contained an identification card with appellant’s name.
            Nichols
testified that he had pleaded guilty to three counts of burglary of a
habitation and received a twenty-year sentence.  His testimony at this trial
was not part of his plea bargain. Nichols admitted that he and appellant broke
into a number of houses that day in addition to the house at 4312 Crenshaw.  Nichols
said that he had opened the window at 4312 Crenshaw and stuck his arm through
the window when he saw someone in the house.  Appellant was with him because
they both had intended to go into the house.  They both ran into an alley when
the homeowner saw Nichols and screamed.  At some point, appellant dropped his
phone and stopped to look for it.
            Nichols
claimed that he did not know Post.  He remembered the house on Spruce Street
where the laptop was taken and said that the amount of cash that he took from
that house was $300, not $1,200.  That laptop was the only laptop taken, and
Nichols said he only planned to pawn the laptop.  He did not know what
appellant pawned that day.  If appellant pawned something other than the
laptop, it was not an item that Nichols had given him.
            Nichols
could not remember whether it was his idea or appellant’s to break into houses.
His usual manner of breaking into a house was to kick in the front door or go
through a window. When shown a picture of some jewelry, Nichols said it was
jewelry that appellant was wearing that day but that he did not know where
appellant got the jewelry.  He testified that, at times, they would separate
when they were in a house and that they did not always share what each took.  Nichols
also said that, at times, he would stand in the yard as a lookout when
appellant went in a house and that, at other times, appellant would stand in
the yard while Nichols went in.  Nichols identified the bank bags that he took
from the Riojas home and said that one of the bags had money in it.  He stated
that he did not tell appellant about the money but that he had intended to share
the proceeds from pawning the laptop with appellant.
            Nichols
testified that he and appellant both entered the house of Stanley O’Neal who
was related to Nichols’s stepfather.  Nichols identified the PlayStation and
bag of clothes that they took from O’Neal’s house and recalled their putting
the laptop and clothes behind a dumpster. Nichols could not identify the houses
by their addresses, he simply showed Detective Beltran which houses they
burglarized.
            Appellant
testified in his defense.  Appellant said that he thought Nichols was his
cousin, but he denied that he ever went with Nichols to do any of the burglaries. 
Even though he heard Nichols testify that he had no deal with the district
attorney’s office, appellant claimed that Nichols was testifying against him to
get a “time cut.”  Although Detective Beltran had testified that appellant told
him that his girlfriend had given him the rings belonging to the Briggs,
appellant testified that Nichols had brought the rings to appellant’s house
while Nichols was staying with appellant.  Appellant admitted that he pawned a
Nintendo Wii system and games for Nichols, as well as a gold ring.  
            Appellant’s
version was that Nichols had suggested that they pick up Post.  After they
picked him up, Post borrowed appellant’s phone, and then Post and Nichols told
appellant that they wanted to go to Post’s girlfriend’s house.  Appellant
claimed that he was just sitting on the curb waiting for them when Nichols and
Post came running past him. Post told appellant that he had dropped appellant’s
phone in the alley.  Appellant was looking for his phone when he met Detective
Beltran.  Appellant admitted that he gave a false name to Detective Beltran.  Appellant
said that he told Detective Beltran that it was Post and some Hispanic-looking
male because appellant did not want to get Nichols into trouble.  Appellant first
testified that it was Post who told him they had “hit a lick.”  A little later,
appellant said it was Nichols who told him that.  He denied ever saying
anything to Detective Beltran about whistling.
            Although
appellant testified that he had been convicted only once for failure to
identify himself, the State presented him with three different judgments convicting
him of that offense. Appellant insisted that the Midland court records were not
accurate.  Appellant claimed that Detective Beltran was mistaken when Detective
Beltran testified that he did not have a gun drawn when he encountered
appellant.  When the State asked appellant why he had gloves on him when the
police encountered him, he denied having gloves and said that the police must
have been mistaken.  The State reminded appellant that Detective Beltran had
testified that he retrieved two of the rings from the pawnshop that were on
appellant’s pawn ticket.  Appellant claimed that that was not accurate because
appellant was wearing those two rings and not a ring with the name “Briggs” on
it.
Standard
of Review
Appellant’s
legal and factual insufficiency issue was written before the decision in Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010).  The Texas
Court of Criminal Appeals concluded in Brooks that there was “no
meaningful distinction between the Jackson v. Virginia[1]
legal-sufficiency standard and the Clewis[2] factual-sufficiency standard.” Brooks, 323
S.W.3d at 902.   The Brooks court held that 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.” 
Id. at 912.  Under this standard, we must review all of 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. at 319.  
            The
jury, as the finder of fact, is the sole judge of the weight and credibility of
the witnesses’ testimony.  Tex. Code
Crim. Proc. Ann. art. 36.13 (West 2007), art. 38.04 (West 1979).  The
jury has the responsibility to resolve conflicts in the testimony and to draw
reasonable inferences from basic facts to ultimate facts.  Jackson v.
Virginia, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007).  In our review, we must determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.  Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).  The standard of
review is the same for direct and circumstantial evidence.  Circumstantial
evidence is as probative as direct evidence in establishing the guilt of a
defendant.  Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.
            Ordinarily,
to hold evidence legally sufficient to sustain a conviction for burglary of a
habitation, the evidence must demonstrate that (1) an individual entered a
habitation; (2) without the effective consent of the owner; (3) in order to
commit or attempt to commit a felony, theft, or assault.  Tex. Penal Code Ann. § 30.02(a)(3)
(West 2011).  However, Tex. Penal Code
Ann. §§ 7.01–.02 (West 2011) allow individuals to be charged as a party
to an offense and to be held criminally responsible for the conduct of another
when that individual acts in concert with another person in committing an
offense.  Circumstantial evidence alone may be used to prove that a person is a
party to an offense.  Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim.
App. 2006); Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App.
1987).  An individual may be guilty of burglary of a habitation even though he
does not personally enter the burglarized premises if he is acting together
with another in the commission of the offense.  Powell, 194 S.W.3d at
506–07; Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976).
            Based
on the evidence, the jury could have found appellant guilty as a principal or
as a party to the various burglaries.  For example, the jury could have
believed that appellant was a lookout at 4312 Crenshaw or could have believed
Nichols’s testimony that appellant was with him and planning to enter the house
with Nichols.  
            There
was legally sufficient evidence to convict appellant.  At 4312 Crenshaw, the
Armendarez home, appellant was found in the alley about one hundred and fifty
feet from the house just minutes after the attempted burglary.  Appellant told
Detective Beltran that he was only there to whistle after he was told that two
men were going to “hit a lick.”  Nichols testified that appellant was the other
man and that appellant was with him when he tried to enter the Armendarez
home.  Nichols has a light complexion; it is not surprising that Armendarez described
him as looking Hispanic.  Appellant testified that he had a white shirt on that
day.  Armendarez described appellant as wearing a white shirt when the officers
found him but said that earlier he was wearing a black jacket.  The officer who
found appellant’s wallet also found a jacket near appellant’s wallet.
            Appellant
was found with a crucifix with a gold chain and a little cupid with a heart
pendant in his possession.  Appellant told Detective Beltran that the crucifix
and pendant had been given to him by his girlfriend, but in his testimony,
appellant denied that statement and said he told Detective Beltran that Nichols
had given them to him.  Sanchez identified those items as belonging to her and
among the items taken from her home at 417 East Shandon.  Sanchez had returned
home on January 26 and found that her door had been kicked in.  Part of the
door frame was lying on the floor.  She also said that some of her jewelry that
was taken had not been returned.
            Nichols
testified that he and appellant both took items from the O’Neal home at 104
West Shandon.  The bag of clothes that was put with Riojas’s laptop near a
dumpster belonged to O’Neal’s son.  The house at 104 West Shandon was only two
blocks from Cash America Pawn where appellant attempted to pawn the laptop.  O’Neal
testified that among the items taken from their house were his son’s missing “M3
player” and clothing (including twelve shirts and shorts) that his son kept in
an American Eagle Outfitters bag.
            Riojas
identified the Toshiba laptop and bank bags that were taken from her house at
813 West Spruce.  Although Nichols said he had only taken $300 from one of the
bank bags, Riojas testified that she had $1,200 in cash and checks in one of
the bags.  Although the serial number had been rubbed off, Riojas was able to
identify the laptop as the one used for her husband’s business because she had
all the documentation that came with the computer.
            Although
the jury found appellant guilty of the other burglaries, the jury found
appellant not guilty of the burglary of the Briggses’ residence at 1723 Maple. 
Yet, appellant had on his fingers custom-made rings the Briggses owned when
Detective Beltran found him.  Appellant had also pawned a lady’s ring that had
the name “Irma” on it; Briggs’s first name was Irma.  
            We
hold that a rational trier of fact could have found the essential elements of
the crimes in counts 4, 5, 6, and 8 beyond a reasonable doubt.  Appellant’s
sole issue is overruled.
This
Court’s Ruling
            The
judgment of the trial court is affirmed.
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
November 17,
2011
Do not publish. 
See Tex. R. App. P.
47.2(b).
Panel consists of:  Wright, C.J.,
McCall, J., and Hill, J.[3]
 




[1]Jackson v. Virginia, 443 U.S. 307 (1979).
 


[2]Clewis v. State,
922 S.W.2d 126 (Tex. Crim. App. 1996). 


[3]John G. Hill, Former Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


