                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-07-00325-CR

JAIME TREJO LOPEZ,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                              From the 40th District Court
                                  Ellis County, Texas
                                Trial Court No. 29169CR


                          MEMORANDUM OPINION


          After fleeing the scene of a home invasion, Appellant Jaime Lopez was arrested

after a videotaped police chase and charged with burglary of a habitation, among other

charges. Challenging the legal and factual sufficiency of the evidence in one issue,

Lopez appeals his burglary conviction and twenty-year prison sentence.           We will

affirm.

          When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the
evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

         In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7. The appellate court “does not indulge in inferences or confine its view to

evidence favoring one side of the case. Rather, it looks at all the evidence on both sides

and then makes a predominantly intuitive judgment. . . .” Id. (quoting William Powers

and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L.

REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate

court, although to a very limited degree, to act as the so-called “thirteenth juror” to

review the factfinder’s weighing of the evidence and disagree with the factfinder’s

Lopez v. State                                                                        Page 2
determination. Watson, 204 S.W.3d at 416-17.

        While Roy Owen was at work on a summer day, his four children were at home

sleeping late.   When the doorbell began to ring and the door was knocked on

repeatedly, fifteen-year-old Michael, with ten-year-old Carissa close by, looked through

the peephole and, not recognizing the person and assuming it was a solicitor, did not

open the door. They moved away from the door, and a few seconds later they heard a

loud thud from the back. They moved toward the kitchen and found Lopez standing

there, who said something to the effect that he thought he was in his wife’s house. He

fled out the back, and Michael followed and watched him climb into the passenger side

of a red Dodge Intrepid with distinctive spots on the front. A shovel was found near

the back door and had been used to make the forced entry.

        Carissa called 9-1-1 and family members, and sheriff’s deputies and Roy Owen

arrived. Michael gave a statement of what he saw to the deputies, and an all-points

bulletin for the vehicle was broadcast. DPS trooper Lee Coronado spotted the suspect

vehicle and engaged in a high-speed chase with his lights, siren, and video camera on.

The car finally drove into a muddy field and got stuck, and the occupants initially fled

on foot but quickly surrendered to law enforcement. The deputy who took Michael’s

statement came to the scene and confirmed that Lopez matched Michael’s description.

At jail, Lopez identified himself as “Cornelio Reyes,” but at his arraignment the next

day his use of the false name was discovered.

        At trial Michael identified Lopez as the man he saw in the kitchen. Carissa was

unable to identify him. The sister of Lopez’s girlfriend testified that Lopez had been at

Lopez v. State                                                                     Page 3
her house that morning after a night of heavy drinking and had left after noon.

        The indictment charged Lopez with entering the habitation of Roy Owen without

his effective consent and with the intent to commit theft. A person commits the offense

of burglary by entering a habitation without the effective consent of the owner, with the

intent to commit a felony or theft. TEX. PEN. CODE ANN. § 30.02(a)(1) (Vernon 2003).

The jury was also charged on the lesser-included offense of criminal trespass but found

Lopez guilty of burglary.

        The State’s theory is that Lopez and his cohort knocked and rang the doorbell,

and upon concluding that no one was inside, Lopez broke in the back door to burglarize

the home. Upon confronting the children, he concocted an excuse for entering and

immediately fled the scene and then from law enforcement.

        Lopez argues that the evidence is insufficient to prove that he was the person

who entered the Owen home and, if his identity was proved, the evidence is insufficient

to prove that he entered the home with the intent to commit a theft. Lopez emphasizes

that there is no evidence of his intent to commit theft because of the comment that he

thought he was in his wife’s home and because he was not wearing gloves, no

fingerprints were taken, and the children did not see him try to take anything.

        A burglary conviction may be supported by the testimony of one witness

without corroborating evidence. See, e.g., Flournoy v. State, 668 S.W.2d 380, 383 (Tex.

Crim. App. 1984). But here, in addition to Michael’s identification of Lopez as the

intruder, there was corroborating evidence: Michael described Lopez to deputies and

said that he got in the passenger side of the car that Trooper Coronado chased, and

Lopez v. State                                                                     Page 4
Coronado identified Lopez as the passenger. The videotape also showed Lopez after

his apprehension, and the jury could use it to compare his likeness on the video to the

defendant at trial. See Conyers v. State, 864 S.W.2d 739, 741 (Tex. App.—Houston [14th

Dist.] 1993, pet. ref’d).

        The requisite specific intent to commit theft can be inferred from a defendant’s

conduct and remarks and from all surrounding circumstances. See Robertson v. State,

871 S.W.2d 701, 705 (Tex. Crim. App. 1993). “In a burglary prosecution, the intent to

commit theft may be inferred from circumstantial evidence.”         Moreno v. State, 702

S.W.2d 636, 641 (Tex. Crim. App. 1986), disapproved on other grounds by Hall v. State, 225

S.W.3d 524 (Tex. Crim. App. 2007); see Roane v. State, 959 S.W.2d 387, 388 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d); Linder v. State, 828 S.W.2d 290, 294 (Tex. App.—

Houston [1st Dist.] 1992, pet. ref’d). Furthermore, immediate flight from a scene can be

considered evidence of consciousness of guilt. See Fentis v. State, 582 S.W.2d 779 (Tex.

Crim. App. 1976); cf. Lucio v. State, 740 S.W.2d 115, 117 (Tex. App.—San Antonio 1987,

no pet.) (evidence of flight alone was insufficient to support burglary conviction). The

State also argues that Lopez’s false self-identification is further evidence of

consciousness of guilt.

        Viewing the evidence in the light most favorable to the verdict, we find that a

rational trier of fact could have found beyond a reasonable doubt that Lopez entered

Owen’s habitation with the intent to commit theft. Other than the potential alibi and

Lopez’s claim that if he was the burglar, he thought he was in his wife’s house, there

was no other controverting evidence, and the jury was free to disbelieve the alibi and

Lopez v. State                                                                      Page 5
Lopez’s explanation for being in the Owen home. And considering all of the evidence

in a neutral light, we find that the evidence is factually sufficient. The proof of guilt is

not so weak nor the conflicting evidence so strong as to render the jury’s verdict clearly

wrong and manifestly unjust.

        Because the evidence is legally and factually sufficient, we overrule Lopez’s issue

and affirm the trial court’s judgment.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed July 29, 2009
Do not publish
[CR25]




Lopez v. State                                                                        Page 6
