Juan Cordova v. State ( 1998 )

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-97-00831-CR

Juan Cordova, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 97-0481, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

This appeal is from a conviction for a burglary of a habitation of Margaret Martinez, appellant's mother. See Tex. Penal Code Ann. § 30.02(a)(3) (West 1994 & Supp. 1999). Appellant Juan Cordova waived trial by jury and entered a plea of not guilty to the indictment in a bench trial. The trial court found appellant guilty. Upon appellant's plea of "true" to the enhancement paragraph alleging a prior burglary conviction, punishment was assessed at 20 years' imprisonment.

Points of Error

Appellant advances two points of error challenging the legal and factual sufficiency of the evidence to support the conviction. We will affirm.

Facts

Jessie Cordova, appellant's 17-year-old sister, came home early from school on the afternoon of December 17, 1996, and found her brother in their mother's home in Austin. She was surprised to see appellant as he had been told two weeks before to leave the house and to stay away. Appellant had two suitcases and a back pack. He told Jessie that he had taken the stereo, the VCR, and the Nintendo, all of which belonged to their mother. When she asked about their mother's pager, which had been taken earlier, appellant threw it on the couch. Jessie had learned from her mother that appellant had returned the house keys earlier. Jessie did not know of the broken window in the rear of the house until the police arrived on the scene.

Margaret Martinez, appellant's mother, testified that she lived with her husband, Edward Martinez, at 603 South 2nd Street in Austin. She and her husband had both signed the lease. She left work and returned home after she received a call from her daughter. She found a "freshly" broken window in the rear of the house and a glove nearby. Two weeks earlier she had the 25-year-old appellant to leave the house and to return the house keys to her. He left the keys in the barbeque pit but had not returned her pager. Mrs. Martinez stated that she had not given appellant permission to enter her home or to take any items including the stereo system, the VCR, and the Nintendo.

Austin Police Officer Thomas Sweeney responded to a burglary of a residence call on December 17, 1996. He spoke with Jessie Cordova and her mother when she arrived home. Sweeney found a back bedroom window that had been broken, which was the apparent point of entry. He received appellant's name from Mrs. Martinez. After a warrant was issued, he patrolled in the area at Mrs. Martinez's request.

Appellant's mother related that he moved to Austin in July or August 1996, after he had been paroled to El Paso upon his release from prison. He was permitted to live with her, but two weeks before December 17, 1996, she told him to leave the house and not to return. Appellant had assaulted his brother, had been taking drugs and "drinking a lot," and told his mother he would "wipe your house out." His mother was afraid of him. She testified the stereo system, the VCR and the Nintendo were worth over $1,700. She discovered that a weed eater, a saw, a recorder and radio were also missing, but she did not know when these items were taken.

Bobby Blackett testified he was employed by Cash America International, a pawn shop. Appellant then stipulated that he had pawned the VCR and stereo system taken in the burglary at the pawn shop.

Appellant testified in his own defense. He admitted that he had been previously convicted of burglary as alleged. Appellant also confessed that he took all of the items missing out of his mother's home without permission on the same day. Appellant acknowledged that he had been told to leave, but he claimed that he had been granted permission to return to collect his personal belongings. He had an extra key and placed it in the mail box when he left on December 17, 1996. He related that he stole a car in Austin and was later arrested in El Paso for parole violations. Appellant advances the contention that he was guilty of theft, not burglary of a habitation.

Legal Sufficiency - Standard of Review

In determining whether the evidence is legally sufficient to support the judgment, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.--Austin 1994, pet. ref'd).

The evidence, viewed in this light, and all reasonable inferences drawn therefrom are evaluated in this review. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). A reviewing court must evaluate all evidence, rightly or wrongly admitted, which the trier of fact was permitted to consider. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1997); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Beltran v. State, 728 S.W.2d 382, 389, (Tex. Crim. App. 1987). The standard for review is the same for both direct and circumstantial evidence cases. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). In analyzing a challenge to the legal sufficiency of the evidence, the reviewing court does not realign, disregard, or weigh the evidence. See Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.--Austin 1997, no pet.).

The trial court was the trier of fact in this bench trial. It was the sole judge of the credibility of the witnesses and the weight to be given the testimony. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 831 (1988). The trial court may accept or reject all or any part of any witness's testimony. See Mattias, 731 S.W.2d at 940. The trial court is not required to believe the defendant's testimony. See Id.; Porter v. State, 388 S.W.2d 422, 423 (Tex. Crim. App. 1965). Reconciliation of evidentiary conflicts is solely the function of the trial court. See Miranda v. State, 813 S.W.2d 724, 733-34 (Tex. App.--San Antonio 1991, pet. ref'd).

Viewing the evidence in the light most favorable to the trial court's judgment, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of burglary of a habitation as charged. The first point of error is overruled.

Factual Sufficiency

In the second point of error, appellant challenges the factual sufficiency of the evidence to sustain the conviction. Factual and legal sufficiency questions are decided by different standards of review. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In evaluating a factual sufficiency question, the appellate court begins with the presumption that the evidence is legally sufficient to support the conviction. See Id. at 134. In this type of analysis the reviewing court views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict or judgment only if it is so contrary as to be clearly wrong and unjust. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 129. There must always be a deference to the findings of the jury or trier of fact. See Cain, 958 S.W.2d at 407. "A court of appeals may not reverse a jury's decision simply because it disagrees with the result; the appellate court must defer to jury findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice." Id. The same reasoning applies to the trial court's judgment in a bench trial. In the event a court of appeals finds the evidence factually insufficient, it must then provide a detailed explanation of that finding so that it is clear that the court accorded the proper deference to the jury's findings or the trial court's judgment. See Cain, 958 S.W.2d at 407.

We have examined the evidence in light of the standard of review for factual insufficiency. We conclude that the trial court's judgment was not so contrary to the great weight and preponderance of evidence as to be clearly wrong and unjust. The second point of error is overruled.

The judgment of conviction is affirmed.

John F. Onion, Jr., Justice

Before Justices Jones, Onion^* and Yeakel^**

Affirmed

Filed: December 3, 1998

Do Not Publish

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

^** Before Lee Yeakel, former Chief Justice, Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 75.003(a)(1) (West 1998).

judge of the credibility of the witnesses and the weight to be given the testimony. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 831 (1988). The trial court may accept or reject all or any part of any witness's testimony. See Mattias, 731 S.W.2d at 940. The trial court is not required to believe the defendant's testimony. See Id.; Porter v. State, 388 S.W.2d 422, 423 (Tex. Crim. App. 1965). Reconciliation of evidentiary conflicts is solely the function of the trial court. See Miranda v. State, 813 S.W.2d 724, 733-34 (Tex. App.--San Antonio 1991, pet. ref'd).

Viewing the evidence in the light most favorable to the trial court's judgment, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of burglary of a habitation as charged. The first point of error is overruled.

Factual Sufficiency

In the second point of error, appellant challenges the factual sufficiency of the evidence to sustain the conviction. Factual and legal sufficiency questions are decided by different standards of review. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In evaluating a factual sufficiency question, the appellate court begins with the presumption that the evidence is legally sufficient to support the conviction. See Id. at 134. In this type of analysis the reviewing court views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict or judgment only if it is so contrary as to