                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00202-CR



         MOSES LAROME MILLER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 1
                   Hunt County, Texas
              Trial Court No. CR1300261




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
        Late one night, Moses Larome Miller was caught red-handed rummaging through

vehicles owned by Kristina Moyer and Brittney Zebendon, Kristina’s sister-in-law. Shortly after

Kristina discovered the hooded Miller searching the vehicles outside her residence, she told

certain family members, and Kristina’s father, Kenneth Moyer, took up a pistol, went outside,

and confronted Miller, interrupting Miller’s search of the vehicles. Though nothing was missing

from either vehicle, the episode resulted in Miller’s conviction for burglary of a vehicle. 1

        On appeal, Miller asserts that he was denied the effective assistance of counsel, because

his trial counsel waived the court reporter’s recording the voir-dire proceedings, and that

insufficient evidence supports his conviction. We affirm the judgment of the trial court because

(1) Miller’s claim of ineffective assistance is meritless, and (2) legally sufficient evidence

supports Miller’s conviction.

(1)     Miller’s Claim of Ineffective Assistance Is Meritless

        Miller argues that his counsel’s waiver of the stenographic recording of voir-dire

proceedings prevented him from preserving appellate review of his Batson challenge. 2 The

record shows that, even though the voir-dire proceedings were not recorded, the Batson

challenge was preserved by the reporter’s stenographic recording.




1
 The trial court sentenced Miller to 365 days’ confinement in Hunt County Jail, ordered him to pay a $4,000.00 fine,
and assessed $268.00 in court costs against him.
2
 Ineffective assistance of counsel claims that have merit are reviewed under the two-pronged Strickland test handed
down by the United States Supreme Court. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Imoudu, 284
S.W.3d 866, 869 (Tex. Crim. App. 2009).

                                                         2
        Miller, an African American, challenged the State’s decision to strike Magdalene

Denmark, an African-American woman who was not questioned by either side during voir dire. 3

Miller pointed out that, because the only other African-American veniremember was dismissed

for health reasons by agreement of the parties, no African Americans were on the jury panel after

the State struck Denmark. Thus, Miller claims, the State struck Denmark to prevent an African

American from serving on the jury.

        The State responded that it struck Denmark because she did not answer the question

posed to all veniremembers of whether they had ever been accused of a criminal offense.

Through other means, the State learned that Denmark had been convicted in 1987 of driving

while intoxicated and twice in 1994 of public intoxication. Denmark’s failure to disclose these

prior convictions was the reason proffered by the State for striking her. 4 To further its race-

neutral explanation for striking Denmark, the State indicated that it had also struck another juror,

who was not African American, because of his criminal history.

        The trial court found that the State provided a race-neutral reason for striking Denmark

and overruled Miller’s Batson challenge. It then asked Miller if he had anything else to present

on that issue, and Miller responded negatively. The entire Batson hearing was stenographically

recorded and transcribed and is a part of the appellate record before us.

        We find that, had Miller claimed error related to this Batson challenge, the claim was

preserved for appellate review. He suggests no other Batson challenge. Therefore, Miller’s
3
Because this juror was not questioned by either attorney, a stenographic recording of the voir-dire proceedings
would not have provided any information relevant to Miller’s Batson challenge.
4
 The State also claimed that, although Denmark was asked the same questions posed to the rest of the panel, she
remained quiet and unresponsive.
                                                      3
complaint of ineffective assistance stemming from counsel’s waiver of a stenographic recording

is meritless and is overruled. 5

(2)         Legally Sufficient Evidence Supports Miller’s Conviction

            In his other point of error, Miller attacks the legal sufficiency of the evidence only with

respect to the element of the intent to commit theft. He argues that intent was not established

because (a) there were no items taken from the cars and (b) there was testimony that Miller was

merely looking for a cigarette lighter. Section 30.04 of the Texas Penal Code requires the

element of intent; “the State is not required to prove any actual taking.” Jones v. State, 482

S.W.2d 634, 636 (Tex. Crim. App. 1972); see Brown v. State, 294 S.W.3d 203, 208 (Tex.

App.—Texarkana 2009, no pet.); TEX. PENAL CODE ANN. § 30.04(a) (West 2011).

            In evaluating legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found

beyond a reasonable doubt the essential elements of the offense. Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We give deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).




5
    Miller does not ask this Court to review the trial court’s ruling on his Batson challenge.
                                                              4
          Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

          A person commits the offense of burglary of a motor vehicle if (1) he or she, (2) without

the effective consent of the owner, (2) breaks into or enters a vehicle or any part of a vehicle (4)

with the intent to commit any felony or theft.         TEX. PENAL CODE ANN. § 30.04(a).          As

mentioned, Miller attacks only the intent element. “[I]ntent to commit theft can be inferred from

the circumstances.” Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. [Panel Op.]

1979); Brown, 294 S.W.3d at 208; Coleman v. State, 832 S.W.2d 409, 413 (Tex. App.—Houston

[1st Dist.] 1992, pet. ref’d)). “[P]roperty need not be taken for proof of intent to commit theft to

be sufficient.” Id. (citing Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.]

1981)).

          The uncontradicted evidence was that Kristina’s and Brittney’s vehicles were locked

when they left them. Under the cover of night, Miller entered the vehicles without consent and

searched through the contents of the vehicles, leaving them in complete disarray. Considering

the effort expended in breaking into the cars and the thoroughness of the search, the jury was free

to determine that Miller’s claim to Kenneth that he was only looking for a cigarette lighter was

false. Further, although he did not get very far, Miller attempted to walk away from Kenneth

                                                  5
after he had been caught inside Kristina’s vehicle. A reasonable jury could rationally conclude

that Miller’s attempt to flee evidenced his criminal intent. It was within the jury’s province to

find that Miller had the intent to commit theft based on the circumstances of this case. See

Brown, 294 S.W.3d at 210. Viewing the evidence in the light most favorable to the verdict, we

find the evidence legally sufficient to sustain Miller’s conviction.

       We affirm the trial court’s judgment.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        February 4, 2014
Date Decided:          February 27, 2014

Do Not Publish




                                                  6
