Joshua Jay Ortiz v. State ( 2015 )


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  • AFFIRM; and Opinion Filed May 8, 2015.
    S    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-14-00545-CR
    JOSHUA JAY ORTIZ, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 283rd Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. F-1359238-T
    MEMORANDUM OPINION
    Before Justices Lang, Stoddart, and Schenck
    Opinion by Justice Schenck
    A jury convicted Joshua Jay Ortiz of burglary of a habitation, and the trial court assessed
    punishment at twenty-five years’ incarceration.       In a single issue, appellant challenges the
    sufficiency of the evidence to support his conviction. We affirm. Because all issues are settled
    in law, we issue this memorandum opinion. TEX. RS. APP. P. 47.2(a), 47.4.
    BACKGROUND
    An intruder broke into the Wear family’s home and removed items including an iPad, a
    jewelry box, and cosmetics. The Wear children, ages eleven and thirteen, were home alone.
    Both children testified that they heard two knocks on the front door followed by a loud banging.
    They wisely escaped the house through a window and ran to a neighbor’s house to seek help.
    Neither child saw the intruder. The neighbor called 911.
    Officer Jeremy Johnson promptly responded to the 911 call. Shortly after arriving at the
    scene, Johnson saw appellant, carrying a full black trash bag, walking down the street. Johnson
    drove up to appellant and asked to speak with him. Appellant replied, “I don’t have to talk to
    you. I didn’t do [expletive].” Appellant then fled across Harry Hines Boulevard, dropping the
    bag in the process. Officer Shane Voss retrieved the bag from the street. Appellant was
    apprehended by Officer Melanie Evans after a chase on foot through Brookhollow Country Club.
    Evans testified that appellant had removed his shirt while attempting to run from the police.
    The police inventoried the items in the black trash bag. The Wears identified the items in
    the bag as belonging to them. One of the children and her mother Lorena Weir testified that their
    front door had been broken down and that someone had gone through the drawers in their home.
    STANDARD OF REVIEW
    We review a challenge to the sufficiency of the evidence under the standard set out in
    Jackson v. Virginia, 
    443 U.S. 307
    (1979). Matlock v. State, 
    392 S.W.3d 662
    , 667 (Tex. Crim.
    App. 2013).    In conducting our review, we consider all of the evidence in the light most
    favorable to the verdict and determine whether a rational trier of fact could have found the
    essential elements of the offense beyond a reasonable doubt. See 
    Jackson, 443 U.S. at 319
    ;
    
    Matlock, 392 S.W.3d at 667
    . This standard recognizes the “responsibility of the trier of fact
    fairly 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
    . The jury, as finder of
    fact, is the sole judge of the credibility of the witnesses and can choose to believe all, some, or
    none of the testimony presented by the parties. See Sharp v. State, 
    707 S.W.2d 611
    , 614 (Tex.
    Crim. App. 1986). We may not re-evaluate the weight and credibility of the record evidence and
    thereby substitute our judgment for that of the fact finder. Williams v. State, 
    235 S.W.3d 742
    ,
    750 (Tex. Crim. App. 2007). Evidence is sufficient if “the inferences necessary to establish guilt
    –2–
    are reasonable based on the cumulative force of all the evidence when considered in the light
    most favorable to the verdict.” See Wise v. State, 
    364 S.W.3d 900
    , 903 (Tex. Crim. App. 2012);
    see also Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007). On appeal, the same
    standard of review is used for both circumstantial and direct evidence cases. 
    Hooper, 214 S.W.3d at 13
    .
    DISCUSSION
    To obtain a conviction for burglary of a habitation, the State was required to prove
    beyond a reasonable doubt that: (1) appellant; (2) entered a habitation; (3) without the effective
    consent of the Wears; (4) in order to commit or attempt to commit a theft. See TEX. PENAL CODE
    ANN. § 30.02(a)(3) (West 2011). Appellant argues there was no direct evidence that he entered
    the Wears’ home. He also contends there was insufficient circumstantial evidence to prove his
    commission of the burglary “because none of it properly warrants an inference of guilt.”
    Appellant correctly points out that no one saw him entering, in, or leaving the Wears’
    home. He argues that because the Wears’ home is close to Harry Hines Boulevard, where there
    are a number of commercial businesses, his presence in the area was not significant. However,
    appellant (1) was seen, by a police officer responding immediately to the 911 call at the Wears’
    home, walking away with a large black trash bag; (2) refused to stop and answer questions from
    the officer; (3) fled from the officer; (4) dropped the bag, which when retrieved by another police
    officer, was determined to contain the Wears’ stolen items; (5) took off his shirt while fleeing;
    and (6) offered no explanation for his possession of the property. The State argues that all of
    these circumstances warrant inferences of guilt.
    Burglary may be proven solely through circumstantial evidence. See, e.g., Poncio v.
    State, 
    185 S.W.3d 904
    , 905 (Tex. Crim. App. 2006). A defendant’s unexplained possession of
    property recently stolen in a burglary permits an inference that the defendant committed the
    –3–
    burglary if it is established that the possession was personal, recent, and unexplained, and that
    the defendant made a distinct and conscious assertion of the right to the property. Rollerson v.
    State, 
    227 S.W.3d 718
    , 725 (Tex. Crim. App. 2007); Sutherlin v. State, 
    682 S.W.2d 546
    , 549
    (Tex. Crim. App. 1984). Further, a defendant’s attempt to flee from law enforcement, while not
    alone sufficient to support a conviction, is a circumstance from which an inference of guilt may
    be drawn. Valdez v. State, 
    623 S.W.2d 317
    , 321 (Tex. Crim. App. 1979). Appellant contends
    that his “momentary possession” of the bag of stolen goods does not warrant an inference of
    guilt. He contends that because he discarded the bag containing the Wears’ property on a public
    street “almost immediately,” he made no distinct and conscious assertion of right to the property,
    ignoring that he dropped the stolen property in the act of fleeing Officer Johnson.            In
    combination with his other actions, however, including his unprompted denial of wrongdoing
    and his statement that he need not explain anything to the police, and considering the short
    period of time between the burglary and appellant’s possession of the property, there was
    sufficient evidence from which the jury could find, beyond a reasonable doubt, that appellant
    committed the burglary. See, e.g., Naranjo v. State, 
    217 S.W.3d 560
    , 571 (Tex. App.—San
    Antonio 2006, no pet.) (generally, shorter interval between theft and possession supports
    stronger inference that defendant committed burglary).
    CONCLUSION
    Reviewing all of the evidence in the light most favorable to the verdict, we conclude a
    rational trier of fact could have found beyond a reasonable doubt that appellant entered the
    Wears’ home with the intent to commit or attempt to commit theft. See TEX. PENAL CODE ANN.
    § 30.02(a)(3); 
    Jackson, 443 U.S. at 319
    ; 
    Matlock, 392 S.W.3d at 667
    . Thus, the evidence is
    sufficient to support the conviction. We overrule appellant’s sole issue.
    –4–
    We affirm the trial court’s judgment.
    /David J. Schenck/
    DAVID J. SCHENCK
    JUSTICE
    Do Not Publish
    TEX. R. APP. P. 47.2(b)
    140545F.U05
    –5–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    JOSHUA JAY ORTIZ, Appellant                         On Appeal from the 283rd Judicial District
    Court, Dallas County, Texas
    No. 05-14-00545-CR        V.                        Trial Court Cause No. F-1359238-T.
    Opinion delivered by Justice Schenck,
    THE STATE OF TEXAS, Appellee                        Justices Lang and Stoddart participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
    Judgment entered this 8th day of May, 2015.
    –6–