Gualberto Flores Menor v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Gualberto Flores Menor

Appellant

Vs.                   No. 11-02-00094-CR -- Appeal from Dallas County

State of Texas

Appellee

After a nonjury trial, Gualberto Flores Menor was convicted of burglary of a building^[1] and sentenced to 180 days confinement in a state jail.^[2]  We affirm.

                                                                Background Facts

The indictment charged that, on or about October 26, 2001, appellant entered a building which was not then open to the public with the intent to commit theft.

The first witness, Jose Perez, testified that he had a business named ABest Buy Furniture@ and that his brother, Jesus Perez, had a business named AFurniture Depot.@  The two furniture stores were on Harry Hines Boulevard in the City of Dallas.  Both Jose and Jesus had been having Atrouble with burglaries,@ and they were taking turns watching the stores to see what was going on.  On the night of October 26, Jose was the one who was watching the stores.  Jose testified that there was a hole in the fence around his brother=s business.   Jose said that he was parked across the street because he Akind of had a feeling@ that the burglars were getting in through that hole.  Jose also said that a car stopped and that three people got out of the car.  The car drove off, and the three people entered Jesus=s property through the hole in the fence.  Jose said that he called the police and that they Acame out fast.@  Then Jose moved his car to a different spot.  When the men saw the police, they ran back inside.  All three of them were carrying pictures and lamps. Jose opened the gate, and the police walked in while Jose waited outside.  Relevant portions of Jose=s testimony read as shown:

Q: Did the police ever come back?

A: They came back with one gentleman.

Q: They come back with what?

A: With one man.

Q: Is that man that they came back with in the courtroom today?

A: Yes, sir. [Then the witness identified appellant as the man.]

During his cross-examination, Jose agreed that there are some mobile homes and travel houses parked on the property next to his brother=s property.  Jose also agreed that he had not seen the men=s faces when they were going into his brother=s property. Jose said that he told the police that appellant was one of the men who went in because of the way he was dressed and because of his long hair.  During his redirect examination, Jose said that he was pretty sure that the police had the right guy when they brought appellant to him for identification Abecause nobody [else] walk in there@ and because of the way appellant was dressed. 

The second witness, Jesus Perez, testified that he and his brother both sell furniture.  Jesus=s store is at 11022 Harry Hines Boulevard.  There is a fence around the property, and there are two big gates on the front.  On the night of October 26, Jesus said that he was at home and that his brother was Awatching the place.@  Jose called him, and Jesus got there while the police were chasing the guys.  There was a helicopter, and they had Athis guy@ in the police car.  Jesus said that there were some pictures and lamps which were not where they should have been and that he had not given appellant permission to enter his property. 

The third witness, Officer Robert Hay of the Dallas Police Department, testified that he was assigned to the northwest patrol division on October 26.  Officer Hay identified appellant as the man who was arrested that night.  Relevant portions of Officer Hay=s testimony read as shown:

Q:  Officer, what were you doing that night and how did you come into contact with [appellant] that evening?

A: While on patrol, myself and my partner received a burglary in progress call at the 11000 block of Harry Hines which intersects with Walnut Hill.  At the time the call came in I was in the 2400 block of Walnut Hill, so I was fairly close.  So we took the call and responded to the location.  I turned northbound onto Harry Hines and entered the furniture warehouse and proceeded to do a drive-by in the front of the business to see if I could see any signs of forced entry or any suspects.  Typically, what happens we get these types of calls in the act, they put the call out right away but there=s a delay of one or two minutes to get any comments on the call, so I didn=t have any knowledge of suspect information at that time.  So I=m looking for forced entry or, you know, possible points where they could have gone into the business.  We didn=t see anything initially, so after I drove to the...west side of the business that faces Harry Hines, I drove around and turned around and came back to check the south side of the business.  At that point I saw three - -

Q: All right.  We will get to that real quick.  May I approach?

THE COURT: Yes.

Q: Now, officer, you said that when you got the call you were initially on Walnut Hill.  [Just show the Judge] how you approached the scene...using that diagram.

A: We were in the 2400 block at the time of the call and we proceeded to go eastbound on Walnut Hill.  We turned north onto Harry Hines and we entered the business.  The first thing we did was we hit the spotlight on the different entry points of this section....We did not see anything so we drove around to this side and didn=t see anything, so I turned around and came all the way back here, and when I got to about this point here I saw the suspects jumping over the fence.  There was two already on the ground.  I couldn=t really see them but I saw the motion, so I lit the suspect, the spotlight on them and I recognized the suspect wearing a teal colored shirt still on top of the fence on his way down.  At that point when he hit the ground they ran this way and we lost contact.  I lost sight of them.  I couldn=t see them at that point.  So I immediately put on the air that we had suspects on the air and the direction of travel and we had requested cover elements.  I knew there was another business here that was full of RV=s parked and I knew that there was a fence.  I knew this because of prior calls at this park.  I knew that there was another razor fence, razor topped wire fence right here.  It would take [the suspects] a few moments to get, to navigate this direction, so I was requesting cover elements to cover this side to see if they could catch them running out.  While we did that we stayed at the front, covered the front, and at that point one of the owners of the business was parked across the street and he had come across.  He was the one who initially put the call into 911.  He told us that he had a key that he could get us into this whole area back here.  We could see if there were anymore suspects inside.  Then we waited to see with cover elements to cover this side.  Another car pulled into the front to cover the front.  At that point we also asked for a helicopter. We started doing the search of individual buildings here just to make sure that nobody else was inside....When the helicopter got up and started circling the RV lot, that=s when the officers came in from this side, at Denton Drive, and we came in on this side right here to conduct a search of the park.  During that search another officer spotted the defendant.

                                                           *    * *

Q: And when did you see that person again?

A: When another officer detained him and held him for me to identify as a possible suspect. [The officer then identified appellant as the man who had been detained by the other officer.]

Q: Is that the same person that you saw on top of the fence leaving Mr. Perez=s property?

A: Yes, sir.

Q: You are absolutely sure of that?

A: Yes, sir.  (Emphasis added)

During his cross-examination by appellant=s attorney, Officer Hay explained that his positive identification of appellant was based upon the shirt which appellant was wearing, upon the fact that he had seen that shirt on the man who was going over the fence, and also upon appellant=s Avery close proximity to the offense location.@ Officer Hay agreed that he had not seen appellant=s face when he saw the man going over the fence.

The fourth witness was Officer Kimberly Filippini of the Dallas Police Department.  She testified that, on the night of October 26, she received a call on the police radio to Aassist on cover for a burglary in progress.”  She testified that, while she was searching the north end of the RV park, she saw movement out of the corner of her eye.  When she turned and looked, Officer Filippini saw appellant Acrouching underneath a tree and behind a tree trunk@ from where she was standing.  Officer Filippini testified that appellant was wearing a Abright blue shirt” and that he had Arip marks on his clothing and scratches on his hands and his face.@  She also said that his rip marks Aappeared to be the same kind of rip marks@ which she got on her pants as she jumped over the barbed wire fence to get into the RV property.  Officer Filippini testified that she gave appellant the order to Aget on the ground and show [her] his hands.”  Another officer responded to her call for assistance.  That officer took appellant around to Officer Hay for positive identification.

The State=s final witness was the supervisor over inmate property for the Dallas County Sheriff=s Department.  He identified the clothing which appellant was wearing at the time of his arrest.  There was a teal-colored ADevil Rays@ sport shirt with rips on it in various places and a pair of blue jeans which had rips in various places.

After the State rested, appellant took the witness stand to swear that he was not the burglar who had been seen going over the fence.  Appellant testified that he was 24 years old, that he was a citizen of Mexico, and that he was in this country Aillegally.@  Appellant testified that he had been looking for work and that he had been living on the streets.  Relevant portions of his testimony during direct examination read as shown:

Q: On the night that you were arrested where were you living? 

A: There where the RV=s are.

Q: Were you - - where did you spend that - - where were you sleeping that night?

A: There inside one of the RV=s.  But when I saw the police getting inside the area I left.

Q: Now...just answer my questions.  All right.  Did you ever go into that furniture business?

A: No.

Q: Do you know who went into that furniture business?

A: No.

Q: You were sleeping in one of the RV=s; is that correct?

A: Yes.

Q: And why did you leave the RV?

A: Because I saw the police coming in and because...I was on probation.  I was afraid that they would arrest me so that=s the reason I left.

During his cross-examination, appellant admitted that he had broken into one of the RV vehicles and claimed that he had been living there.  Appellant said that he jumped the fence when he was trying to get away from the police officer and that this was what caused his shirt and jeans to be torn.

                                                       Points of Error

Appellant presents two points of error.  Appellant argues in the first point that the evidence is Alegally@ insufficient to prove that he was the person who committed the offense, and appellant argues in the second point that the evidence is Afactually@ insufficient to prove that he was the person who committed the offense.

                                                 Controlling Authorities

In reviewing appellant=s claim that the evidence is Alegally@ insufficient, this court looks at all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002).

In reviewing appellant=s claim that the evidence is Afactually@ insufficient, we look at all of the evidence in a neutral light.  We will reverse the conviction if the evidence is Aso obviously weak@ or is Aso greatly outweighed@ by other evidence that the conviction is Aclearly wrong and manifestly unjust.@ Vasquez v. State, supra at 236; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996).

When there is a nonjury trial, the trial judge is the Aexclusive judge of the credibility of the witnesses and the weight to be given to their testimony.@  See, e.g., Mattias v. State, 731 S.W.2d 936, 940 (Tex.Cr.App.1987), cert. den=d, 488 U.S. 831 (1988).  In a nonjury trial, the judge of the trial court is authorized to accept or reject any or all of the testimony of any of the witnesses, whether they testify for the State or for the accused.  Mattias v. State, supra.  The trial court was not bound to accept appellant=s explanation for why he was hiding from the police when they responded to the dispatcher=s report of a Aburglary in progress.@ 

The testimony from Jose Perez, Officer Hay, and Officer Filippini is Alegally@sufficient to support the conviction. That testimony would permit a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.  That testimony is neither Aso obviously weak@ nor Aso greatly outweighed@ by other evidence that the conviction is clearly wrong and manifestly unjust.  Both points of error are overruled.                            

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

May 15, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

McCall, J., and Dickenson, S.J.^[3]

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^[1]See TEX. PENAL CODE ANN. ' 30.02 (Vernon 2003).

^[2]See TEX. PENAL CODE ANN. ' 12.35 (Vernon 2003).

^[3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.