McDonald, Richard Ray v. State ( 2004 )

Affirmed and Memorandum Opinion filed December 9, 2004

Affirmed and Memorandum Opinion filed December 9, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01122-CR

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RICHARD RAY MCDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 177th District Court

Harris County, Texas

Trial Court Cause No. 931,759

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M E M O R A N D U M   O P I N I O N

In this appeal of a jury conviction for burglary of a habitation, Richard Ray McDonald challenges the sufficiency of the evidence identifying him as the person who committed the burglary. Concluding the identification evidence is both legally and factually sufficient, we affirm.

I.  Factual and Procedural Background

Sometime during the day on August 4, 2002, Frederick Morrison=s townhome was burglarized.  That afternoon, Vivian Phelps, Morrison=s neighbor, answered her door and encountered a black male who asked for AMrs. Jones.@ The man left after Phelps responded that no one by the name Jones lived there.  Approximately 20 minutes later, Phelps observed the same man enter a beige Toyota pickup and drive out of the townhome complex.  Because the man drove away very quickly, Phelps became suspicious and wrote down the truck=s license plate number.  At approximately the same time, another of Morrison=s neighbors also observed the truck driving out of the complex and took note of the license number.  After Morrison reported the burglary to the Houston Police Department (AHPD@), HPD matched the license number to the Toyota pickup belonging to appellant=s mother.  They also recovered a fingerprint, later identified as appellant=s, from a pretzel jar in which Morrison stored coins.  The coins were among the items of property Morrison reported stolen during the burglary.  Appellant was charged with burglary of a habitation with intent to commit theft and convicted by a jury.  The jury found two enhancement paragraphs to be true and sentenced appellant to 45 years= confinement.  This appeal ensued.

II.  Discussion

In two issues, appellant claims the evidence identifying him as the perpetrator of the burglary is legally and factually insufficient to support his conviction.

A.        Standards of Review

In a legal sufficiency review, we view all the evidence in a light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  In conducting our review, we do not re-weigh the evidence or substitute our judgment for that of the fact finder.  Id.; Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).  We will affirm the decision if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

When conducting a factual sufficiency review, we consider all the evidence in a neutral light and set aside the verdict only if (1) the evidence supporting the verdict, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).  In our review of the evidence, we must be deferential to the jury=s findings and resist intruding on the fact finder=s role as the sole judge of the weight and credibility of the evidence.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  The standards of review for legal and factual sufficiency are the same regardless of whether the evidence is direct or circumstantial.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

B.        Legal Sufficiency of the Evidence

In addition to the statutory elements for burglary of a habitation,^[1] in this case the State had the burden to prove beyond a reasonable doubt that appellant was the person who committed the burglary.  Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.CHouston [14th Dist .] 2001, pet. ref=d). The State may prove identity through either direct or circumstantial evidence.  Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.CAustin 2000, pet. ref=d). The failure of an eyewitness to make an unequivocal in-court identification will not render the verdict improper, so long as there is other evidence corroborating the identification. Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.CHouston [14th Dist.] 1993,  pet. ref=d); Anderson v. State, 813 S.W.2d 177, 179 (Tex. App.CDallas 1991, no pet.).

Appellant contends the evidence is legally insufficient to support his conviction because Phelps=s in-court identification was Aequivocal or uncertain at best.@ At trial, Phelps testified she was Aabout 95 percent@ certain appellant was the man at her door.^[2]  Phelps further stated that she noticed gold in the teeth of the man at her door and, in her opinion, the gold in appellant=s teeth was similar.  Although Phelps was not 100 percent certain that appellant was the man at her door, any uncertainty goes to the weight of the testimony and is judged by the jury. Anderson, 813 S.W.2d at 179; Ates v. State, 644 S.W.2d 843, 844B45 (Tex. App.CTyler 1982, no pet.).  Further, absolute certainty on the part of Phelps is not required to sustain appellant=s conviction because there is corroborating identification evidence.  Conyers, 864 S.W.2d at 740.

Phelps=s in-court identification was corroborated by identification of the license plate number of the Toyota pickup, which matched the license number noted by Morrison=s neighbors.  Both Phelps and another neighbor wrote down the same license plate number for the Toyota pickup they observed at the townhome complex.  The police matched that license number to the Toyota pickup owned by appellant=s mother and often driven by appellant.  Thus, along with Phelps=s identification, the corroborating license-plate evidence ties appellant to the truck and the crime scene.  

In addition to the license plate match, the State introduced the testimony of Walter Rowe, an HPD Fingerprint Identification Officer.  Rowe testified that a print taken from the jar in Morrison=s home matched appellant=s print.  Another officer verified Rowe=s match of the fingerprints.  This evidence further supports Phelps=s in-court identification and serves to identify appellant as the perpetrator of the burglary.  See Robertson, 16 S.W.3d at 167 (stating that identity may be proved by inferences).

Viewing this evidence in a light most favorable to the verdict, we hold a rational juror could have found beyond a reasonable doubt that appellant was the person who committed the burglary.  See Westbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  Accordingly, appellant=s first issue is overruled.

C.        Factual Sufficiency of the Evidence

Regarding factual sufficiency, appellant argues that the uncertainty of Phelps=s identification, coupled with weaknesses in the fingerprint and license plate matches are insufficient to support his conviction.  We disagree.

At trial, appellant=s counsel attempted to create another theory for the placement of the fingerprint on the pretzel jar. During the cross-examination of Officer Rowe, appellant=s trial counsel suggested the possibility that appellant could have left the fingerprint on the jar when he was browsing a food store.  Appellant argues that this inference, together with Officer Rowe=s inability to determine the age of the fingerprint, A[says] nothing about whether appellant ever entered the Morrison townhome.@  An innocent, but unlikely, explanation for the presence of the fingerprint does not necessarily make the evidence insufficient.  Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. 1980). 

On the other hand, there is strong evidence suggesting appellant left the fingerprint during the burglary.  There is evidence of forced entry into Morrison=s townhome.  Morrison testified that he did not give appellant permission to be in his home on the date of the burglary.  Also, there was no evidence that Morrison=s home was at any time open to the public or that appellant had previously been inside Morrison=s home.  Thus, it was reasonable for the jury to find that appellant left the fingerprint on the jar while committing the burglary.  See Villareal v. State, 79 S.W.3d 806, 811 (Tex. App.CCorpus Christi 2002, pet. ref=d) (stating defendant=s access to the fingerprinted object is an important factor in determining the sufficiency of fingerprint evidence).

Appellant=s trial counsel also attempted to show that the license plates had been stolen from the truck belonging to appellant=s mother.  Appellant=s wife testified that the truck=s license plates had been stolen twice.  She could not, however, remember the dates the thefts occurred, and further stated the thefts were never reported to the police.  While this testimony may suggest a conflict in the evidence, it is the province of the jury alone to resolve such conflicts.  Herrero v. State, 124 S.W.3d 827, 832 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  The jury was free to disregard the testimony of appellant=s wife.  See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (stating the jury is the exclusive judge of the credibility of, and the weight to be given to, witness testimony).

Viewing the evidence in a neutral light, we cannot conclude the evidence supporting the conviction, when considered by itself, is so weak that it will not support the verdict of guilt beyond a reasonable doubt, or the contrary evidence is so strong that the State could not prove beyond a reasonable doubt that appellant committed the burglary. Zuniga, 144 S.W.3d at 484B85. Accordingly, appellant=s second issue is overruled, and the judgment of the trial court is affirmed.   

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 9, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  A person commits the offense of burglary of a habitation if the person, without the owner=s consent:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. 

Tex. Pen. Code Ann. ' 30.02 (Vernon 2004).

^[2]  Phelps was unable to identify appellant as the man at her door in a pre-trial photo spread.