Estrada, Jose Nicolas v. State ( 2003 )

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed April 24, 2003.                                                     

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00571-CR

____________

JOSE NICOLAS ESTRADA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

                                                           Harris County, Texas                      

Trial Court Cause No. 901,418

M E M O R A N D U M   O P I N I O N

A jury found appellant guilty of burglary of a habitation with the intent to commit theft and, after he pleaded true to two prior felony convictions, assessed punishment at seven years’ imprisonment.  He contends the evidence was legally and factually insufficient because no one saw him enter the burglarized residence, no one could positively identify him, and no fingerprints tied him to the burglary.  As all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex R. App. P. 47.1. Applying the usual standards of review, we affirm.  See Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual sufficiency). 

Two witnesses testified that around midnight they saw one or two men loading a brown Lincoln Town Car in the driveway of a vacant house in the Heights area of Houston.  Dr. Erik Felton saw two men, one of whom he described as Hispanic and younger than the other.  (Appellant, a Hispanic male, is younger than the non-Hispanic man also arrested in connection with the burglary.)  Elsa Villarreal saw only one man, but saw the same car, with a large white appliance protruding from the trunk.  Both called the police.

Within two minutes of their calls, an officer arrived on the scene. Shortly thereafter, another officer a little more than a mile from the burglarized house spotted a Lincoln Town Car matching the description provided by the eyewitnesses.  Two men (including appellant) and a sink were inside the car, and a stove protruded from the trunk.  Both appliances were later identified by the landlord as items taken from the burglarized residence.  Although neither eyewitness could positively identify either of the men, both positively identified the Lincoln Town Car as the vehicle that had been parked in the driveway.

Additionally, the evidence at trial showed the back door to the residence was open and a rear window had been broken.  The owner of the house testified the house had been secured before that evening, and he had never given appellant (whom he did not know) permission to enter it. 

A person commits burglary by entering a habitation without consent of the owner with the intent to commit a felony, theft, or an assault. See Tex. Penal Code Ann. § 30.02. Both identity and entry may be proven by circumstantial evidence.  See Earls v. State, 707 S.W.2d 190, 196 (Tex. Crim. App. 1984) (identity); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (identity); see also Gilberston v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. 1978) (entry); Draper v. State, 681 S.W.2d 175, 177 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d.) (entry). Accordingly, we find the evidence was both legally and factually sufficient.

We overrule appellant’s points of error and affirm the judgment of the trial court.

                                                                                                                                                                                                                        /s/        Scott Brister

                                                                        Chief Justice

Judgment rendered and Opinion filed April 24, 2003.

Panel consists of Chief Justice Brister and Justice Fowler and Senior Chief Justice Murphy.[1]

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

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[1] Senior Chief Justice Paul C. Murphy participating by assignment.