NO. 07-01-0387-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A APRIL 24, 2002

______________________________ GENARO AGUIRRE LUNA, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 242 ND DISTRIC T COURT O F HALE COUN TY; NO. B 14062-0105; HONORABLE ED SELF, JUDG E

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ.
In two issues challenging the legal suffic ie ncy of the evidence, appellant Ge naro Aguirre Luna appeals hiscon viction of the offense of burglar y of a habitati on and the resulting sentence of ten years confinement in the Ins titutional D ivisio n of the Department of Criminal Ju stice. We overrule appellant’ s issues and, for the reasons set forth, af firm the judgment of the t rial court

.2

Appellant

arg ues fi rst that

the evidenc e is not leg ally suffici ent to show that he entered the premi ses in ques tion wit houtconsent and, second, th at there is no evidence to connect him w ith the proper ty alleg edly stol en from the premises . In considering a legal sufficiency challenge, we rev iew the evidence in the light most favorable to the ver dict and determine whether any rational tr ier of fact could hav e found the essential elements of the crimebeyond a reasonable doubt. Jackson v. Vi rginia, 443 U.S. 307, 318- 19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State was required to prove that appellant (1) entered
a habitation (2)

without t he effective consent of the ow ner Ginny Amador, and (3) attempted to comm i t or committed theft of pr operty ow ned by Amador. See Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon Supp. 200 2). It is the State’s failu re to prov e the second and third elements

beyond a reas onable doubt that appel lant challeng es.
Officer Gregory Bevera ge with the Plainview Police Depar

tment was dispatched on April 20, 2001, to 602 W est 28 th Street in Pl ainview , where Amador resided, to r

eceive a report of a burglary

in whic h two telev ision sets a nd a gold watch were stolen. The police removed latent finger prints from a w indow. Amador told Beverage that no one e lse lived with her or had access to the house.
Dete ctive Mitchell Matthewswas the l ead detective on the repo rted burgl ary. A rear window was broken, and it was his belief that the win dow was the poi nt of entry by the burglar du e to the fact it w as open and the contents of the res idence on the ins ide of the window had been knocked around. H e actually removed the w indow and l ifted latent fingerprints

fr om both insi de and outside the w indow. H e made a comparison of the3

fingerprints

obtain ed from the window to those of known prints of appe llant, which matched. After determini ng there was a match of the finge rprints, he located appellan t and que stioned him as to whether he had ever bee n to the reside nce. He later obtained an arrest warrant for appell ant. The property stolen from the r

esidence was not recovered.
Matt hews admitted that he al so lifted sev eral fingerp rints from the inside and outs ide of the window other th an the ones he matched to appellant. So me of those other pri nts did not have all the character istics needed to make a proper comparison due to smudging
or the fact the print

d id not set. How

ever, the s mudges of the other prints he loo ked at
were cons istent wi th those of appellant. Captain Michael C arroll of the C riminal Investigation Division of the Plainview Police Department

assis ted M atth ews in comparing t he fingerpri nts and making a determination thatthey mat ched . He also s howed Amador a photo spread contai ning a pict ure of appellant, but she did not recogni ze anyone. Additionally, he pointed out a specif ic picture of appellant, but she did not know him.
Amador stated she cam e home from work on April 19 and noticed the lights were off, although they

had been on when she left. When she went insi de, she discovered the televisi ons were mis sing. She l ater discovered a bracele t and a gold w atch were al s o missing. Amador denied knowing app ellant or that she had ever given him permission to enter her house. She d id not kno w that the wi ndow had been br oken in the rear

of the house until the pol ice officer discovered it. She claimed i t had not been broken w hen she left for work

.4

Amador admitted that

her hu sband, from w hom s he w as separated at t he time of the burglary , would often hav e friends over on the weekend to dr ink, althoug h she believed she knew

his friends. She stated that a ppellant was not a friend and s he had never s een him prior to bei ng shown his picturein a photogr aph spread. The Sunday prior to th e burgl ary, her husband had so meone else at the house with him, but she did not know w ho itwas. She also agreed that the week of the bur glary her husband could have come into the house because he had a spare key. Amador further admi tted that she did not know all of her husband’s fri ends. Additional ly, she to ld the police officer that only she and her baby lived in the house. Appellant

testified that he knew Amador’ s husband and th at he had been to the house with him a few

days before bei ng arreste d. They were there for about 30 minutes and used som e cocain e. He claim ed that althou gh Amador’s husband had a key, he could notget it to w

ork at first, so appellant tried to open the ki tc hen w indow when Amador’s husband warned hi m it was br oken. However, appe llan t grab bed the win dow to remo ve broken glas s from when Amador’s husband allegedly broke it somet ime prior to April 19. These actions cause d his fingerprints to be on both the inside and outside of the win dow. Appellant

also claimed he had been at the house one other time and A mador had seen him there. He denied taking any proper ty from the house.
Matt hews was recalled on rebuttal to testify that appellant told h im he did not know anyone who lived at the resid ence or that he had ever been in the re side nce. Matth ews5

stated appellant did not tell him a bout the win dow being broken prior to A pril 19, or that he had been doing dr ugs in the hou se.
In his f irst i ssue , app ella nt cla ims t he evi de nce raises t he issue of wh ether the complainant’s husband consented to appellant’s entry into the house because ther e was no testimony contradicting the fact that the husband h ad access to thehouse. W hen there is more than one o wner o f pro pert y, the State has to allege and prove ownership in only
one of them. Te x. C ode Cr im. Proc. Ann. ar t. 21.08 (Vernon 1989). Further , it has been held that when the owner testifies entry was wi thou t co nsen t, i t isnot n eces sar y fo r th e wi fe of the owner

to also state that the entry was w ithout consent. Dykes v. St ate , 657 S.W.2d 796, 797 (Tex.Crim.App. 19 83).
Lack of consent may beproven by circumstanti al evidenc e. Schenk v. State , 652 S.W.2d 509, 510 (Tex.A pp.--Houston [1 st Dist.] 1983, pet. ref’d) . In this i nstance, there w as direct testimony fro m Amador that she di d not giv e appellant consent to enter her house , she did not know

him and had neve r seen him before t he burglar y, and she did not know him to be a friend of her husband. There was al so contradict ing testimony from appellant thathe was a cq uainted wi th Amador’s husba nd, who ga ve consent to enter the house. Further, Amador could not state th at her husband had no t been in the house the week of the burglar

y or that s he knew all of his friends. Appellant

relies on Villanueva v. State , 711 S.W.2d 739 ( Tex.App.--San Antonio 1986, pet. ref’d), as

authority

that the evi dence is insuffici ent to show lack of consent. In1 The State arguesthata mar ital relat ions hip d oes n ot au thor ize a husband to enter

premises occupied by an estranged wife in reliance on Stanley v. Stat e , 631 S.W.2d 751 (Tex.Cri m.App. 1982), but in that case, the estranged wife had filed for divorce, moved out of the marital residence and set up a separate residence for herself and her s on. Id. at 753. 6 thatcase, the owner’s children were resi ding wit h her a t the t ime of the burglary. Alt hough she testi fied that she did not g ive the defendant consent, she admitte d that he wasan acquaintance of her son Dav id and had been in t he ho use several times. Another son testified that he saw

David and the defendantcome into the hous e the night befor e and the next morning saw

the defendant run out of the house wi th a televi sion. The defendant testified he entered w ith Davi d’s consent w hile Dav id himself did not t esti fy . The court found tha t the owner’schildren w ere in contr

ol and possessi on of the residence at that time, and in vi ew of the uncontr adicted testimony

that the defendant

entered wi th consent, the State failed to p rove lack of consent beyond a reasonable doubt. Id. at 740.
We belie ve the facts before us ar e distingui shable because, i n this instance, there
was rebuttal testimony from the police officer t hat appellant tol d him he did not k now anyone in the house and had not been in the house, thereby contradicting appellant’s claim thathe knew Amador’ s husband and enter ed the house on two occasions w ith the consent of her husband. 1 It was wit hin t he pr ovinc e ofthe j ury to we igh the c onflicting testimony and det ermine the cred ibility of appellant. Thus, A mador’s and Mat thews’s testimony, i f believed, w

as sufficient to show a lack of consent. Appell ant’s first i ssue is overruled.7

In his second issue, appellant asserts the evidence is legally insufficient to pr ove he attempted to com mit or committed thef t. He argues there is no evidence to connect him with any stolen property b ecause none wa s recover ed, no one saw

him with any stolen prop erty, and he did not have any cash or dru gs on him a t the time of his arrest. The evidence onl y shows his presence at the scene of the c rime whi ch, he posits, is not sufficient to suppor

t a convic

tion.
Itis tr ue that

the mer e pres ence of a n accus ed at th e cri me scene wi ll not support
a conv ictio n, but it is a circumstance tending to pr ove guil t which, when combined w ith other facts, may suffice. Johnson v. State , 537 S.W .2d 16, 18 (Tex.Crim.App. 197 6). As already noted, there were no w itnesses to th e burglary , appellant was not observed at the crimescene, and none ofthe stolen items were found in appellant’s possession. Evidence
was presented that appe llant’s fingerprint s were found both inside and outsi de a window thatthe complainant testif ied had not been broken prior to her le aving f or work. Items immediately by the w indow on the inside of the house were “k nocked a round .” Sever al pieces of property, including two television sets, were also missi ng when the complainant returned from w

ork.
There is a line o f cases holding that fingerpr int evide nce is sufficient to sustain a convicti on if the eviden ce shows t hat the prints were neces sarily made at the time of the burgl ary. Bowen v. State, 460 S.W.2d 421, 423 (Tex.Crim.Ap p. 1970); Dues v. State, 456 S.W.2d 116, 117 (Tex.C rim.App. 1970); Guzm an v. State , 732 S.W.2d 683, 685 (Tex.App. --CorpusChristi 1987, no pet.). The Court of Criminal Appeals has si nce abandoned the8

standard of review

in effect at the time Bowen and Dues were deci ded, which was that evidence is insufficient

to support a conviction if there exi sts a reasonabl e hypothesis other than appellant’s guilt. The standard of rev iew we must use is t hat which we have already explicated and its state progeny.
T he e vidence is

undisputed that app ellant’s fing erprints w ere found on both the outside and inside of the w indow. Appel lant offered an explanation at trial for the presence of his fingerprint

s. This ex planation incl uded a statement that t he window had been broken for some time prior

to the date of the burglar y, whi ch the complainant denied, and that he had been p rev iously s een by the compl ainant in the hous e with her husband, whi ch she also denied. There was also evidence that appellant c laimed to police he never had been inside the house or to have known the persons living there. Thus, the jury had before it conflicting evid ence asto w hether the pr ints w

ere mad e at thetime of the bur glar y or some other time. However, the evidence in th e ligh t mos t fa vorab le to the ve rdict would allow a rational trier of fact to find a ppellant committed a theft. Appellant’s seco nd issue is overrule d. Having overrul ed both of appellant’s i ssues, we affirm the judgment of the trial court.

John T. Bo yd Chief Justice Do not publish

.