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 2005-07

Hugo Hernandez v. State ( 2005 )


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    NUMBER 13-03-663-CR

     

                             COURT OF APPEALS

     

                   THIRTEENTH DISTRICT OF TEXAS

     

                      CORPUS CHRISTI - EDINBURG

     

     

     

    HUGO HERNANDEZ,                                                 Appellant,

     

                                               v.

     

    STATE OF TEXAS,                                                    Appellee.

     

     

     

                      On appeal from the 107th District Court

                              of Cameron County, Texas.

     

     

     

                         MEMORANDUM OPINION[1]

     

                    Before Justices Rodriguez, Castillo, and Garza

                      Memorandum Opinion by Justice Castillo  

     

    A jury convicted appellant Hugo Hernandez of burglary of a building[2] and theft.[3] After finding the enhancement paragraphs true, the jury assessed punishment at ten years' imprisonment for the burglary offense and twenty years' imprisonment for the theft offense in the Texas Department of Criminal JusticeBInstitutional Division.  The trial court ordered the sentences to run concurrently.  By five issues, Hernandez challenges the sufficiency of the evidence and admission of evidence.

    I.  RELEVANT FACTS

    On the morning of October 29, 2001, Nari Mahbubani arrived at his jewelry store and discovered it in disarray.  Numerous items of jewelry were missing.  Police lifted a finger print from a display case inside the store. Expert testimony established that the fingerprint was that of Hernandez.  Hernandez testified at trial.  He denied he was ever in the store.  Hernandez denied he committed the offenses.  He testified that he was framed and had an alibi. 

    II.  SUFFICIENCY

    In his first and second issues, Hernandez asserts that the evidence is legally and factually insufficient to support his conviction for burglary of a building.  In his third and fourth issues, he asserts the evidence is legally and factually insufficient to support his conviction for theft.  The State counters that the fingerprint evidence placed Hernandez inside the building after hours, without the owner=s consent.

    A.  Legal Sufficiency Standard of Review

    A legal‑sufficiency challenge requires us to review the relevant evidence in the light most favorable to the verdict, and then to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc).  This standard is designed to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts."  Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).  We consider all the evidence that sustains the conviction, whether properly or improperly admitted.  Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (en banc)).  Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc).  In this review, we are not to reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).


    The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).[4]  This standard of legal sufficiency ensures that judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted.  Malik, 953 S.W.2d at 240.  We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.       

    B.  Factual Sufficiency Standard of Review

    A factual‑sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient, that is, sufficient under Jackson v. Virginia, 443 U.S. 307, 319 (1979).  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (en banc).  In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond‑a‑reasonable‑doubt  standard could not have been met.  Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (en banc).  A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias."  Prible v. State, No. AP‑74,487, 2005 Tex. Crim. App. LEXIS 110, at *16‑*17 (Tex. Crim. App. January 26, 2005) (designated for publication).  In conducting a factual sufficiency review, we review all the evidence.  Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We must consider the most important evidence that the appellant claims undermines the jury's verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we approach a factual‑sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder.[5]  Johnson v. State, 23 S.W.3d 1, 6‑7 (Tex. Crim. App. 2000) (en banc).  Every fact need not point directly and independently to the accused's guilt.  Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).  A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances.  Id.

    Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  See Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004); see also Zuliani v. State, 97 S.W.3d 589, 593‑94 (Tex. Crim. App. 2003).  We remain mindful of the jury's role to resolve conflicts in testimony.  See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc) (questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974).  We  must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution.  Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc).

    C.  Hypothetically Correct Jury Charge

    We measure the factual sufficiency of the evidence against a hypothetically correct jury charge.[6]  Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).  A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).  A hypothetically correct jury charge would not simply quote from the controlling statute.  Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001).  Its scope is limited by the statutory elements of the offense as modified by the charging instrument.  See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

    D.  Burglary of a Building

    1.  The Hypothetically Correct Jury Charge

    Count one of the indictment charged Hernandez with burglary of a building.  The hypothetically correct jury charge against which we measure the sufficiency of the evidence would ask the jury if (1) Hernandez, (2) on or about October 21, 2001, (3) intentionally and knowingly, (4) entered a building, (5) not then open to the public,  (6) without the owner's effective consent, (7) and committed the theft of jewelry.[7] See Tex. Pen. Code Ann. ' 30.02(a)(3) (Vernon 2003).

    2.  The Record

    Two detectives from the burglary task force testified that the point of entry was through an air conditioning duct at the rear of the building. Telephone lines and electrical wires were cut. The alarm wires were also cut.  State's exhibit number 12, admitted in evidence, shows the "fingerprint activity" lifted from the glass on a display cabinet inside the jewelry store. State's exhibit 15, also admitted in evidence, is the expert's report showing the results of the fingerprint analysis.  The report shows that the latent fingerprint lifted from the front glass display belongs to Hernandez.  The latent print examiner testified that the fingerprint matched over fifteen points of reference in Hernandez's left thumb print.[8]  Mahbubani, the store owner, testified that he did not give anyone permission to be inside the store or at or near the location of the display case, where the fingerprint was lifted.  He testified he lost numerous items of jewelry.  The value of the property at cost was about $40,000.  He did not give permission to anyone to take the jewelry. As to the display case where the fingerprint was lifted, he testified that "Customers do not get back into that display window during regular business hours."  He further testified that jewelry was taken without his consent  from the display case where the fingerprint was lifted and from other display cases. The itemized list of the stolen jewelry was admitted in evidence as State's exhibit 19.  A detective with the burglary task force testified that the fingerprint was lifted from the display case located at the front of the building. This area was not open to the public. He further testified that the only way the fingerprint was left on the display cabinet was by Hernandez's presence in that location.    


    Hernandez testified that he was on intensive supervision probation at the time, and a probation officer checked to ensure he was home at 8:00 each evening.  On the date in question, he worked that morning, spent the night with a girlfriend, and stayed home the remainder of the following day after attending church. He denied that he was in the jewelry store on or about October 29, 2001.  He denied he had ever been in the jewelry store.  When asked about the fingerprint, Hernandez testified that he was framed[9] and the fingerprint was a "fabrication."  Hernandez's landlord testified that Hernandez stayed home most nights.  The landlord owned expensive items and Hernandez never took anything from him.  If Hernandez borrowed tools, he returned them.

    3.  Legal Sufficiency AnalysisBBurglary of a Building

    In his first issue, Hernandez argues, in particular, that the evidence is legally insufficient to prove (1) identity, (2) entry, and (3) intent to commit theft or any other felony.[10]  He argues that the conviction was based on insufficient circumstantial evidence.

    a. Identity

    Generally, fingerprint evidence alone will be sufficient to sustain a conviction if the evidence shows that the print was necessarily made at the time of the burglary.  See Villarreal v. State, 79 S.W.3d 806, 811 (Tex. App.BCorpus Christi 2002, pet. ref=d.) (citing Bowen v. State, 460 S.W.2d 421, 423 (Tex. Crim. App. 1970)).  One important factor in determining the sufficiency of fingerprint evidence is the extent to which the fingerprinted object was accessible to the defendant.  Id. (citing Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. 1980)).

    The evidence shows that someone entered the jewelry store through the air conditioning duct at the rear of the building when the building was locked and the jewelry store was closed.  Mahbubani, the store owner, did not consent to Hernandez's entry into the store or the taking of the jewelry. Numerous items of jewelry were taken from the store.  As to the identity of the burglar, the record establishes that a fingerprint, positively identified as Hernandez's left thumb print, was found on a display cabinet inside the store in an area not accessible to the public.

    Viewing the evidence in the light most favorable to the verdict, we conclude: (1) a fingerprint lifted inside the store matched Hernandez's left thumb print; (2) because Hernandez denied he was ever in the store, the jury could have reasonably inferred that the fingerprint was necessarily made at the time of the burglary; (3) the jewelry and the display case from which the fingerprint was lifted was not accessible to Hernandez at any time; and (4) the same evidence negates the probability that the fingerprint was made prior to the time of the burglary.  Villarreal, 79 S.W.3d at 812.  We conclude that a rational trier of fact could have found the essential element of identity.

      b. Entry

    In deciding whether the circumstantial evidence is sufficient to support a conviction, each case must necessarily be tested by its own facts.  Id. (citing Robinson v. State, 570 S.W.2d 906, 910 (Tex. Crim. App. 1978) and Ysasaga v. State, 444 S.W.2d 305, 308 (Tex. Crim. App. 1969)). The State may prove entry through circumstantial evidence.  Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978); Draper v. State, 681 S.W.2d 175, 177 (Tex. App.BHouston [14th Dist.] 1984, pet. ref'd). 

    Viewed in the light most favorable to the verdict and against a hypothetically correct jury charge, the evidence establishes that Hernandez's fingerprint was lifted from the display case inside of the building which was not accessible to the public.  As one detective testified, the only way Hernandez made the fingerprint "was by his presence in that location."  We conclude that a rational trier of fact could have found beyond a reasonable doubt the essential element of entry.

    c.  Intent to Commit Any Felony

    Hernandez was charged under section 30.02(a)(3) of the penal code. When a defendant is charged under that section, the State is not required to prove that the defendant intended to commit the felony or theft at the time of entry.[11]  See Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App.BWaco 1997, pet. ref=d).  The State must simply prove that the defendant intentionally or knowingly entered the building without the owner's consent and while inside committed or intended to commit a felony or theft.  Id. Accordingly, we need not determine the legal sufficiency of the evidence of his intent to commit any felony when he entered the jewelry store because this is not an essential element of the offense of burglary of a building under section 30.02(a)(3).  Espinoza, 955 S.W.2d at 111.

     

    d.  Disposition

    We conclude the evidence is legally sufficient.  See Jackson, 443 U.S. at 319; Malik, 953 S.W.2d at 240.  We overrule Hernandez's first issue.

    4.  Factual Sufficiency Analysis

    In his second issue, Hernandez argues that the evidence is factually insufficient to prove (1) entry, and (2) intent to commit theft or any felony.  He points to evidence that no tools were found at the point of entry and that the stolen jewelry was never found.  Hernandez points to no other contrary evidence.  Our review of the record shows contrary evidence includes Hernandez's defenses of innocence, alibi, and fabrication of the fingerprint.

    Viewed in a neutral light, the latent fingerprint evidence placed Hernandez inside the building not then open to the public. The jury rejected Hernandez's claim of innocence, alibi, and fabrication.  The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.  Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see Johnson, 23 S.W.3d at 6‑7, Matchett, 941 S.W.2d at 936.  We defer to the jury's credibility determination.  Id.  We have already concluded that proof of intent to commit any felony is not an essential element of the offense of burglary of a building.  See Espinoza, 955 S.W.2d at 111.


    Having reviewed all the evidence neutrally, favoring neither the prosecution or Hernandez, we find that proof of entry is not so obviously weak as to undermine confidence in the jury's determination.  See Zuliani, 97 S.W.3d at 593‑94.  Nor do we find that the proof is greatly outweighed by contrary proof.  See id. That the evidence was not free of contradiction and that the credibility of witnesses may have been subject to question does not require us to conclude that the verdict was factually insupportable. See id.

    We conclude the evidence is factually sufficient.  We overrule Hernandez's second issue.

    E.  Theft

    1.  The Hypothetically Correct Jury Charge

              Count two of the indictment charged Hernandez with theft of property.  The hypothetically correct jury charge against which we measure the sufficiency of the evidence would ask the jury if (1) Hernandez, (2) on or about October 21, 2001, (3) unlawfully, (4) appropriated property, (5) with the intent to deprive the owner of the property.  Tex. Pen. Code Ann. ' 31.03 (Vernon Supp. 2004-05); Thomason v. State, 892 S.W.2d 8, 10 (Tex. Crim. App. 1994).


    "Appropriate" means to bring about a transfer of title or other non‑possessory interest in property or to acquire or otherwise exercise control over property.  See Tex. Pen. Code Ann. ' 31.01(4) (Vernon Supp. 2004-05).  The statute defines three ways in which an appropriation is unlawful, including "without the owner's effective consent." Tex. Pen. Code Ann. ' 31.03(b) (Vernon Supp. 2004-05); Stockman v. State, 826 S.W.2d 627, 636 (Tex. App.BDallas 1992, pet. ref'd).  However, this consent only extends to those customers legitimately on the premises and who are honestly contemplating the purchase of merchandise.  See Ashby v. State, 604 S.W.2d 897, 901 (Tex. Crim. App. 1980) (en banc) (op. on reh'g). "Deprive" means to withhold property from the owner permanently.  Tex. Pen. Code Ann. ' 31.01(2)(C) (Vernon Supp. 2004-05).  The intent to deprive is determined from the words and acts of the accused.  Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1991); Roberson v. State, 821 S.W.2d 446, 448 (Tex. App.BCorpus Christi 1991, pet. ref'd).  The crucial element of theft is the deprivation of property from the rightful owner, without the owner's consent, regardless of whether the defendant at that moment has taken possession of the property.  Stewart v. State, 44 S.W.3d 582, 589 (Tex. Crim. App. 2001).

    2.  Legal Sufficiency AnalysisBTheft

    In his third issue, Hernandez argues that the evidence is legally insufficient to prove the essential elements of (1) appropriation, and (2)  intent to deprive the owner of the property.  The State counters that the evidence, although circumstantial, is sufficient.[12] 

    a.  The Record

    The indictment alleged that appellant appropriated the property by "acquiring or otherwise exercising control over" currency and jewelry[13] with the intent to deprive  the owner of the property.  Mahbubani testified that when he closed the store on the evening of October 28, 2001, he left money in the currency drawer.  He also left the jewelry items in place in the display cabinets. He secured the building and set the alarm.  Mahbubani testified that, on the next business day, the jewelry, valued at cost in the amount of approximately $40,000 and the money in the cash drawer had been taken without his consent from his store.  The jewelry and the money were never recovered. 


    Evidence showed that Mahbubani's jewelry store is located in the downtown district.  The burglary task force had been investigating a recent series of burglaries of businesses in the vicinity.  Burglaries in the area were averaging two a week.  Common to the offenses was the method of operation:  initial access to the buildings was gained through the alley, a weak point in the building (such as a window or weak wall) was breached, alarm systems were defeated, telephone lines were cut, and the targeted items were jewelry or currency.  The burglar demonstrated a knowledge of building construction.  Hernandez was a suspect because a jewelry store (other than Mahbubani's store) was burglarized a day after Hernandez was released from jail on another offense.  A witness testified that, shortly thereafter, Hernandez sold jewelry at "cheap" prices.  The witness was charged with possession of stolen property after buying jewelry Hernandez sold.[14]  Hernandez was also a suspect because his fingerprint was lifted at the other burglarized jewelry store.  When Hernandez was arrested for the Mahbubani burglary, the burglaries stopped. Hernandez denied involvement in any burglaries.  He admitted he had worked in construction.   

    b.  Disposition

    The legal sufficiency standard of review is meant to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts."  Sanders, 119 S.W.3d at 820; Griffin, 614 S.W.2d at 159.  We consider all the evidence that sustains the conviction, whether properly or improperly admitted.  Conner, 67 S.W.3d at 197 (citing Garcia, 919 S.W.2d at 378); see Moff v. State, 131 S.W.3d 485, 489‑90 (Tex. Crim. App. 2004).  Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence.  King, 29 S.W.3d at 562; Cook, 858 S.W.2d at 470.  In this review, we are not to reevaluate the weight and credibility of the evidence, but rather, we act only to ensure that the jury reached a rational decision.  Muniz, 851 S.W.2d at 246.  The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

    In this case, the ultimate facts in question were (1) appropriation of the currency and jewelry and (2) the specific intent to deprive the owner of the property.  A rational jury could have inferred the ultimate facts from evidence that Hernandez was inside the store and the items were missing.  Mahbubani secured the store before leaving.  Hernandez did not have Mahbubani's permission to be inside the store.  Hernandez's fingerprint placed him inside the store even though he denied he was ever inside the store.  The method of operation of burglaries in the area were similar to that of the Mahbubani jewelry store burglary. Money and jewelry were missing, without Mahbubani's consent, by the time he opened the store the next business day.  Burglaries in the area stopped after Hernandez was apprehended for the Mahbubani burglary. 

    It is not necessary that each bit of circumstantial evidence by itself directly and independently prove guilt; instead, what is needed is that the cumulative force of all the circumstances establish guilt.  Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) (en banc).  A jury may infer intent from any facts which tend to prove its existence, including the method of committing the crime.  See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (en banc).  On this record, we cannot say that a jury would have unfairly or irrationally inferred that Hernandez appropriated the property with the specific intent to deprive the owner of it.  See Sanders, 119 S.W.3d at 821; see also Griffin, 614 S.W.2d at 159.  We assume that the jury resolved conflicts in testimony, weighed the evidence, and drew reasonable inferences in the manner that supports the verdict.  Griffin, 614 S.W.2d at 159.


     Viewing the evidence in the light most favorable to the verdict and measuring it against the essential elements of theft as defined in a hypothetically correct jury charge, we conclude that a rational jury could have inferred the ultimate facts that Hernandez appropriated, by acquiring or otherwise exercising control over the currency and jewelry, with the intent to deprive the owner Mahbubani of the property.  Id.  We conclude the evidence is legally sufficient.  See Jackson, 443 U.S. at 319; Malik, 953 S.W.2d at 240. We overrule Hernandez's third issue.

    3.  Factual Sufficiency AnalysisBTheft

    In his fourth issue, Hernandez asserts the evidence is factually insufficient to prove the essential elements of (1) appropriation, (2) intent to deprive, and (3) value of the stolen property.  The indictment alleged that the currency and property had a value of $20,000 or more but less than $100,000.  Hernandez asserts that the State did not prove he acquired the alleged stolen property, exercised control over it, or did so with the intent to deprive the owner of the property.  He further asserts that the State's evidence of value was not supported by other extrinsic, independent evidence.

    a.  Appropriation and Intent to Deprive

    Hernandez argues that the evidence of the essential elements of appropriation and intent to deprive is circumstantial.  We are mindful that every fact need not point directly and independently to the accused's guilt.  Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).  A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances.  Id.


    We begin our factual sufficiency review with the same evidence we reviewed for our legal sufficiency analysis.  Contrary evidence is Hernandez's claim of innocence, alibi, and fabrication.  Sims, 99 S.W.3d at 603 ("We must consider the most important evidence that the appellant claims undermines the jury's verdict.").  By its verdict, the jury as the sole trier of fact and credibility of the witnesses, rejected Hernandez's defense.  See Gamble v. State, No. 01‑03‑00477‑CR, 2005 Tex. App. LEXIS 338, at *8 (Tex. App.BHouston [1st Dist.] January 13, 2005, pet. ref'd) (citing Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (en banc)). We defer to the jury's determinations, particularly those concerning the weight and credibility of the evidence.  See Sims, 99 S.W.3d at 603.

    b.  Value

    Hernandez argues that value is an essential element of theft. However, the court of criminal appeals has characterized the property‑value range for theft as a jurisdictional element rather than an element of the offense itself.  Campbell v. State, 5 S.W.3d 693, 699‑700 (Tex. Crim. App. 1999) (en banc); Cheney v. State, 755 S.W.2d 123, 128 n.6 (Tex. Crim. App. 1988) (en banc).  An allegation in a theft indictment of the value of the stolen property affects the question as to whether the offense is a felony or a misdemeanor.  See Campbell, 5 S.W.3d at 699-700. Accordingly, we need not determine the factual sufficiency of evidence of value because the property-value range is jurisdictional and not an essential element of the offense of burglary of a building.  Id.


    c.  Disposition

    Viewing all the evidence without the prism of the light most favorable to the verdict and without favoring either the State or Hernandez, we conclude:  (1) that a rational trier of fact could have found beyond a reasonable doubt that Hernandez appropriated the property, by acquiring or otherwise exercising control over it, with the intent to deprive the owner of the property; and the property had a value of $20,000 or more but less than $100,000; (2) the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt; nor is the weight of the evidence contrary to the verdict strong enough that the State could not have met its burden of proof.  See Zuniga, 144 S.W.3d at 484‑85. The evidence is factually sufficient. Id.  We overrule Hernandez's fourth issue.

    III.  ADMISSION OF EVIDENCE

    In his fifth issue, Hernandez argues that the trial court abused its discretion by admitting State's exhibit 19, a list of the stolen property and its value.  He asserts that the evidence was inadmissible under rule 901of the Texas Rules of Evidence. Tex. R. Evid. 901.  The State counters that the error, if any, was harmless.

    Exhibit 19 is a multi-page document.  It contains an itemization of the property lost in the burglary.  The "dollar value" is beside each identified jewelry item.  At trial, the State moved for its admission in evidence. The defense, on voir dire, questioned Mahbubani, who testified that he prepared the list to give to his wife to copy onto the blank sheets provided by the detective investigating the case.  He explained that his handwriting "is not that good . . . .  I prepared it to give it to her, and she wrote it down, and she signed it." The defense objected, "It appears he did not write it, and it was his wife who wrote it.  We would have no objection if his wife were here to testify to those facts."  The trial court overruled the objection.

    Rule 901 states, in part, that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support  a finding that the matter in question is what its proponent claims.  Tex. R. Evid. 901(a).  By way of illustration, an example of authentication or identification conforming with the requirements of this rule includes testimony that a matter is what it is claimed to be.  Tex. R. Evid. 901(b)(1). 

    A.  Standard of Review

    A trial court's admission or exclusion of evidence is reviewed under an abuse‑of‑discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Salazar v. State, 38 S.W.3d 141, 153‑54 (Tex. Crim. App. 2001).  A trial judge is given wide discretion when deciding admissibility of evidence.  Sonnier v. State, 913 S.W.2d 511, 518‑19 (Tex. Crim. App. 1995) (en banc).  An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles.  Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc).  In other words, an abuse of discretion occurs only when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree.  Id.


    B.  Disposition

    Mahbubani had personal knowledge of the items listed on the document because he made a list and his wife copied the list.  The list became the multi-page document marked and admitted as State's exhibit 19.  Authentication and identification in conformity with rule 19 is accomplished by the testimony of a witness with knowledge that the matter is what it is claimed to be. We conclude that the trial court could have concluded that Mahbubani's testimony sufficiently complied with the plain meaning of the rule.  We cannot conclude that the trial court's ruling was outside the zone of reasonable disagreement.  Id.  Thus, the trial court did not abuse its discretion in admitting State's exhibit 19.

    Even assuming without deciding that the trial court erred in admitting the exhibit, we conclude the error, if any, was harmless.  Tex. R. App. P. 44.2.  On this record, we cannot conclude that the error contributed to the conviction or punishment or affected Hernandez's substantial rights.  Tex. R. App. P. 44.2(a) and (b). 

    We overrule Hernandez's fifth issue.

    IV.  CONCLUSION

    Having overruled the five issues presented, we affirm the judgment.

    ERRLINDA CASTILLO

    Justice

    Do not publish.

    Tex. R. App. P. 47.2(b).

     

    Memorandum Opinion delivered and filed

    this 7th day of July, 2005.

     


    [1] See Tex. R. App. P. 47.1, 47.2.

    [2] See Tex. Pen. Code Ann. _ 30.02(a)(3) (Vernon 2003).  Count one of the indictment alleged that, on or about October 29, 2001, Hugo Hernandez, with intent to commit theft, entered a building or a portion of a building not then open to the public without the effective consent of Nari Mahbubani, the owner.

    [3] See Tex. Pen. Code Ann. ' 31.03(a) (Vernon Supp. 2004-05).  Count two of the indictment  alleged that, on or about October 29, 2001, Hugo Hernandez unlawfully appropriated, by acquiring or otherwise exercising control over, property (currency and jewelry) of the value of $20,000 or more but less than $100,000 from Nari Mahbubani the owner, with the intent to deprive the owner of the property. 

    [4] A hypothetically correct jury charge does not simply quote from the controlling statute.  Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by the statutory elements of the offense as modified by the charging instrument.  See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).  Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence.  See Gollihar, 46 S.W.3d at 252.  Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error.  Id. at 255. 

     

    [5] We always remain aware of the fact finder's role and unique position, a position we are un-

    able to occupy.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).  Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice.  Id.  Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence.  Id.  Absent exceptional circumstances, issues of witness credibility are for the jury, and we may not substitute our view of the credibility of a witness for the constitutionally guaranteed jury determination.  Id.

     

    [6] The court of criminal appeals has not specifically applied the hypothetically correct jury charge analytical construct to factual‑sufficiency reviews in jury trials.  See Zubia v. State, 998 S.W.2d 226, 227 n.2 (Tex. Crim. App. 1999) (per curiam) (en banc) (dismissing as improvidently granted the question of whether Malik should extend to factual grounds not submitted to the jury). 

    [7] Section 30.02 of the Texas Penal Code lists three "distinct ways" a burglary may be committed. Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App.BWaco 1997, pet. ref=d) (citing DeVaughn v. State, 749 S.W.2d 62, 64 (Tex. Crim. App. 1988)); see Tex. Pen. Code Ann. ' 30.02(a) (Vernon 2003).  If a defendant is charged with burglary under subsections (a)(1) or (a)(2), the State is required to prove the defendant's intent to commit a felony or theft at the time the defendant entered or remained concealed in a habitation or building.  Espinoza, 955 S.W.2d at 111; see also Tex. Pen. Code Ann. ' 30.02(a) (Vernon 2003).  However, when a defendant is charged under subsection (a)(3), the State is not required to prove that the defendant intended to commit the felony or theft at the time of entry.  Espinoza, 955 S.W.2d at 111.

    [8] The latent print examiner also testified that the fifteen points of reference was an above average number because the standard is six to eight points of reference. 

    [9] Hernandez also testified as to additional instances he claimed law enforcement framed him.

    [10] In his appellate brief, Hernandez does not provide argument or authority as to any other elements of the offense.  See Tex. R. App. P. 38.1(h). 

    [11] See note 4.

    [12] "Circumstantial evidence is 'direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.'"  Cowan v. State, 840 S.W.2d 435, 438 n.10 (Tex. Crim. App. 1992) (quoting Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984) (en banc)).  In both circumstantial and direct evidence cases the standard by which evidence is reviewed is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Skelton v. State, 795 S.W.2d 162, 167 (Tex. Crim. App. 1989) (en banc).  Proof which amounts to only a strong suspicion or mere probability is insufficient.  Id. at 167.  It is the appellate court's function to insure that no one is convicted of a crime except on proof beyond a reasonable doubt. Id. 

    [13] The indictment lists numerous items of jewelry.

    [14] The witness testified he saw Hernandez selling jewelry at a barbecue.  The witness testified that he bought the jewelry from someone that bought from Hernandez.  He also testified that he bought jewelry from Hernandez.