                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00301-CR


JAMES LEMONS JR.                                               APPELLANT

                                          V.

THE STATE OF TEXAS                                                  STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      In two points, Appellant James Lemons, Jr. appeals his conviction for

burglary of a habitation. We affirm.




      1
       See Tex. R. App. P. 47.4.

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                    II. Factual and Procedural Background

      Ronnietta Wimbrey returned to the house where she lived with her step-

mother, Joyce Harris, to discover a man’s legs emerging from the living room

window. Wimbrey called 911, and Lemons, who roughly matched the description

Wimbrey provided to responding Fort Worth Police Officer Thomas Hauck, was

arrested ten minutes later in a nearby parking lot and later indicted for burglary of

a habitation. Lemons pleaded not guilty to the charge, but the trial court found

him guilty.2 After Lemons pleaded ―true‖ to the two allegations in the habitual

offender notice, the trial court sentenced him to the statutory minimum of twenty-

five years’ confinement. This appeal followed.

                          III. Sufficiency of the Evidence

      Lemons complains in his second point that the evidence is insufficient to

support his conviction.

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,


      2
       Because Lemons challenges the sufficiency of the evidence to support his
conviction, we set out the evidence in detail below.

                                         2
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This 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, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).         Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine 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). We

must presume that the factfinder resolved any conflicting inferences in favor of

the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.




                                        3
      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.

B. Evidence at Trial

      1. Ronnietta Wimbrey’s Testimony

      Wimbrey, age twenty-two, testified that around 9:00 p.m. on December 25,

2009, she pulled into the driveway of the home she shared with her step-mother,

Joyce Harris, and saw a pair of legs emerge from a window. She turned off her

car and called 911. As she waited for the 911 dispatcher to answer her call, a

man climbed out of the window, walked past the passenger side of her car, and

ran away. She confirmed that both the house’s front porch light and a streetlight

across the street were lit. She said that she and the man stared at each other as

the man walked past her car.         She also testified that the police arrived

approximately two minutes after she contacted 911, that she let the officers in the

house, and that she described the individual she saw exiting through the window

to the officers.   She confirmed that Harris, who arrived a short time later,

provided the officers with a list of items believed to be missing from the home.

      Wimbrey identified Lemons at trial. She also said that she saw Lemons in

the hallway outside of the courtroom and had pointed him out but that the

prosecutor had not asked her to identify anyone in the hallway. Wimbrey based

her identification on what she saw on December 25, 2009. She said that within

ten minutes after the officers arrived at her home, an officer took her to some


                                         4
nearby apartments and asked her to identify some items displayed on the trunk

of a patrol car. The police then asked her to look at an individual, and that even

though he was no longer wearing the hoodie, she recognized the man’s pants,

shoes, and facial features. Wimbrey knew instantly that this was the man she

had seen crawling out of her window.

      During cross-examination, Wimbrey admitted that because the man wore a

jacket zipped to the top with the hood pulled over his head, she did not see the

sides of his face, his hair, or if he was wearing anything on his head; did not

notice if he had a bad complexion; and did not know what type of shirt he had on

under the jacket. But she reiterated that she did see his nose, mouth, facial hair,

outer clothing, and shoes. She also said that the man carried a white plastic bag

that looked ―pretty full‖ and that appeared to contain more items than were later

recovered from Lemons’s pockets.

      2. Officer Thomas Hauck’s Testimony

      Officer Hauck testified that he was dispatched at 9:00 p.m. for a burglary in

progress, that he arrived at Wimbrey and Harris’s house at 9:10 p.m., and that he

issued a radio broadcast of Wimbrey’s description of the burglar—a slender black

male, roughly six feet tall, with a mustache and goatee, and wearing a black

hoodie jacket, tennis shoes, and blue jeans.       Officer Hauck stated that he

searched the house, that the house was in disarray, and that Wimbrey provided

him with a list of items she believed to be missing. Officer Hauck said that a few




                                        5
minutes later, he learned that Officer James Alexander saw a suspicious person

darting through a nearby apartment complex’s parking lot.

      Officer Hauck went to the apartment complex. He and Officer Alexander

found Lemons crouching next to a car. Officer Hauck testified that the officers

detained Lemons because he matched the description that Wimbrey had

provided. He stated that the officers told Lemons that he was being detained,

performed a frisk search, and noted that Lemons had bulging pockets. Officer

Hauck said that after Lemons consented to a search, the officers searched his

pockets, which contained a wallet, four packs of cigarettes, two watches, five

rings, a set of earrings, a gold bracelet, a cigarette lighter, and a wrench. The

officers believed that some of those items belonged to Wimbrey and Harris.

Officer Hauck identified Lemons as the person whom he had detained and in

whose pockets the items were found on the night of the burglary.

      During cross-examination, Officer Hauck confirmed that on the night of the

burglary, Lemons claimed that he purchased the items from a black man driving

a white Taurus and planned to resell them at a profit to purchase crack cocaine.

He also said that Lemons was not wearing a hoodie when he was detained and

that the officers searched for but did not find any discarded clothing. Officer

Hauck stated that he arrived at the apartment complex within ten minutes after

he first arrived at Wimbrey and Harris’s home and that the complex’s parking lot

was fenced in and had one driveway that served as both an entrance and an exit.




                                       6
Officer Hauck also said that the fence had gaps through which an individual on

foot could enter the parking lot.

      3. Officer James Alexander’s Testimony

      Officer Alexander testified that within three minutes of receiving the initial

burglary in progress 911 dispatch, he arrived at an apartment complex two

blocks from Wimbrey and Harris’s house. He confirmed that a fence enclosed

the complex and that a single road accessed the complex’s parking lot. Within

four or five minutes of entering the parking lot, he saw a person sprint across the

parking lot, and he drove to the area that the person ran toward, exited his car,

and found Lemons kneeling down by a parked car. Officer Hauck then arrived,

and both officers converged on Lemons as he crouched by the car.

      Officer Alexander reiterated Officer Hauck’s testimony about frisking

Lemons, obtaining consent to search Lemons’s pockets, and finding Wimbrey’s

and Harris’s property in Lemons’s pockets, but he stated that they arrested

Lemons based on an outstanding warrant. The officers searched the area for

forty-five minutes but did not find the black hoodie Wimbrey described or a laptop

that Wimbrey listed as missing.

      Officer Alexander identified Lemons as the person that he saw running

across the parking lot and crouching by the car.        During cross-examination,

Officer Alexander confirmed that Lemons told the officers that he had bought the

items from a black man in a white Taurus but that the officers did not look beyond

the parking lot for a white Taurus.


                                         7
      4. Officer John Romer’s Testimony

      Officer Romer testified that he arrived at Wimbrey and Harris’s house

shortly after Officer Hauck and assisted in the search of the house. He also said

that Wimbrey and Harris identified the items taken from Lemons’s pockets as

their own. During cross-examination, Romer admitted that no fingerprints were

found at Wimbrey and Harris’s home.

      5. Joyce Harris’s Testimony

      Joyce Harris testified that on December 25, 2009, she arrived home about

ten minutes after receiving Wimbrey’s call informing her that their house had

been burglarized. She said that she did not give Lemons permission either to

enter the house or to take items from it. She then identified several of the items

found in Lemons’s pockets as her property.

C. Applicable Law

      A person commits the offense of burglary if, without the effective consent

of the owner, he enters a habitation and either commits or attempts to commit

theft. Tex. Penal Code Ann. § 30.02(a)(3) (West 2011). Burglary can be proven

solely through circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608

(Tex. Crim. App. 1978); Rollerson v. State, 196 S.W.3d 818, 820 (Tex. App.—

Texarkana 2006) (Rollerson I), aff’d, 227 S.W.3d 718 (Tex. Crim. App. 2007)

(Rollerson II).

      Further, in cases where there is independent evidence of a burglary, the

unexplained personal possession of recently stolen property may constitute


                                        8
sufficient evidence to support a conviction.    Rollerson II, 227 S.W.3d at 725;

Chavez v. State, 843 S.W.2d 586, 587 (Tex. Crim. App. 1992); see also Sutherlin

v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). Mere possession of

stolen property does not create a presumption of guilt, rather, it can support an

inference of guilt of the offense in which the property was stolen. Hardesty v.

State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983); see also Poncio v. State, 185

S.W.3d 904, 905 (Tex. Crim. App. 2006). To warrant an inference of guilt based

solely on the possession of stolen property, it must be established that the

possession was personal, recent, and unexplained. Grant v. State, 566 S.W.2d

954, 956 (Tex. Crim. App. 1978). Also, the possession must involve a distinct

and conscious assertion of a right to the property by the defendant. Id. The

shorter the period of time between the taking of the property and the defendant’s

possession of the property, the stronger the inference that the defendant knew

the property was stolen. Naranjo v. State, 217 S.W.3d 560, 571 (Tex. App.—San

Antonio 2006, no pet.). If the defendant offers an explanation for his possession

of the stolen property, the record must demonstrate that the account is false or

unreasonable. 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 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no pet.).              This

inference of guilt is not conclusive on its own, however, and the sufficiency of the




                                         9
evidence must still be examined according to the applicable evidentiary

standards of appellate review. Hardesty, 656 S.W.2d at 77.

D. Analysis

      Lemons does not dispute that a burglary was committed; instead, he

contends that the evidence is insufficient to prove that he committed the burglary.

However, the record reflects that each element required to warrant an inference

of guilt is present. See Grant, 566 S.W.2d at 956. Someone roughly matching

Lemons’s description was seen climbing from the window of Wimbrey and

Harris’s home, and within minutes of the 911 dispatch, Officer Alexander saw

Lemons run across a parking lot a few blocks from the scene of the burglary and

crouch near the front tire of a car. Approximately ten minutes after the burglary

occurred, the police found jewelry and other items taken from Wimbrey and

Harris’s home in Lemons’s pockets.       See Rollerson II, 227 S.W.3d at 725

(holding that the defendant’s possession of items recently stolen in a burglary

was legally sufficient to convict him of the burglary, even though there were no

witnesses to the burglary); Poncio, 185 S.W.3d at 905 (same).

      Further, by asserting that he had obtained the items from a person driving

a white Taurus, Lemons consciously asserted a right to the stolen property. See

Grant, 566 S.W.2d at 956.      But even though Lemons offered an alternative

explanation as to why the items were in his possession, the trial court expressly

disregarded this explanation as implausible given the short time between

Wimbrey’s 911 call and Lemons’s apprehension, stating


                                        10
      I agree with [the defense’s] general proposition, [that] it doesn’t
      make sense to ditch the most expensive item [the laptop]. And
      under normal circumstances, I agree with that.

            [I]t makes perfect sense if you’re making eye contact and
      watching the person making a 911 call and you’re caught in the act
      crawling out of the window, to get rid of the most obviously
      incriminating evidence, be it a hoodie, be it a Walmart sack with a
      computer or other items, because you know the police are on the
      way, . . . [M]inutes later [Lemons] is in the parking lot meeting the
      description, being detained and interviewed by police officers
      contemporaneous with the at-scene investigation in progress, and
      he’s there with his pockets stuffed full of merchandise out of this
      house when it makes no common sense that you have time to sit,
      someone drive up in a white Taurus, wheel and deal, and shove
      your pockets full of information.

            ....

             And if a person had a white Taurus and wanted to unload stuff
      and had been seen crawling out of a window, it makes no sense
      they’re going to stop three blocks away to wheel and deal with
      somebody instead of getting the heck out of Dodge because the
      cavalry is on the way, . . . . [T]he time from the time he leaves the
      scene and the time the officers see [Lemons] at the location wouldn’t
      allow time for another person on foot or in a car to sit there to wheel
      and deal.

            ....

             [I]t’s in the record, the time of the original dispatch, the time
      they’re observing [Lemons] and getting follow-up calls. There’s no
      logical, human, scientific explanation for the circumstances other
      than he’s the guy that came out of the window independent of any
      identification, independent of any eyewitnesses identification.

See Poncio, 185 S.W.3d at 905 (stating that the unexplained possession of

property that has been recently stolen in a burglary permits an inference that the

defendant is the one who committed the burglary); Adams, 552 S.W.2d at 815

(noting that the record must demonstrate that the defendant’s explanation of his


                                        11
possession of recently stolen property is either false or unreasonable before the

evidence will support the conviction of burglary); see also Gear v. State, 340

S.W.3d 743, 747 (Tex. Crim. App. 2011) (noting that an implausible explanation

permits an inference of guilt and may also be considered as affirmative evidence

of guilt).

       The trial court, as trier of fact, was free to believe or disbelieve Lemons’s

explanation. See id., Considering the evidence in a light most favorable to the

prosecution, we conclude that a reasonable minded trier of fact could have

convicted Lemons of burglary of a habitation because Lemons’s possession of

the stolen items was personal and recent, and his explanation for his possession

of the items was expressly discredited by the trial court. 3     See Adams, 552

S.W.2d at 815. We overrule Lemons’s second point.

                                 VI. Conclusion

       Having overruled Lemons’s dispositive point, we affirm the trial court’s

judgment.

                                                   PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2011

       3
        In his first point, Lemons argues that Wimbrey’s identification of him on
the night of his arrest was unconstitutionally suggestive. But because the
evidence is sufficient to support Lemons’s conviction without Wimbrey’s
identification, we do not reach Lemons’s first point. See Tex. R. App. P. 47.1.

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