AFFIRM; and Opinion Filed November 28, 2018.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05 - 17 - 00959 - CR DARRYL PAUL GAMBLE , Appellant

V. THE STATE OF TEXAS , Appellee On Appeal from the Criminal District Court No. 1

Dallas County, Texas Trial Court Cause No. F - 1754557 - H 

### MEMORANDUM OPINION Before Justices Stoddart, Whitehill, and Boatright

Opinion by Justice Boatright A jury convicted Darryl Paul Gamble of burglary of a building and assessed punishment at ten years ’ incarceration

. Appellant challeng es the sufficiency of the evidence to support his conviction . He also asserts the trial court erred by admitting intake photographs at trial. We affirm. BACKGROUND On May 7, 2017, at 1: 2 0 a.m., a n intruder broke into the U

- Haul Center on Ferguson Road, in Dallas, Texas, by breaking out the glass in the front door with a rock. The intruder entered the store and took money out of the cash register . Making several trips in and ou t of the store, he removed a variety of items, including locks, a drill set, hitch balls, gloves, two dollies, packages of Lysol wipes, a backpack, and two sets of keys for U

- Haul vehicle s . He loaded all of the items into a ten

- foot U

- Haul moving van and drove away.– 2

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As soon as the store alarm was triggered, U

- Haul’s security team contacted one of the store managers, Adriana Zetina, and advised her that surveillance cameras showed an intruder in the store. After calling 911, Zetina drove to the store to meet the responding police officers , Dallas Police Officer Michael Slay and his partner . Zetina and the officers viewed video from the fifteen surveillance cameras that were located throughout the store. The video showed the burglar wearing orange glov es, black pants with a vertical white stripe from the calf to the ankle on the outside of the pant leg, black shoes with white sole s, and a black jacket with distinctive diamond

- patterned stitch ing . At one point during the video, the burglar’s pants fell d own around his knees , and he appeared to be wearing another pair of black pants underneath his outer pants. Zetina and the officers compiled an inventory of the stolen items. Officer Slay sent out a city

- wide police alert with the vehicle description and license plate number of the stolen U

- Haul van. Approximately two hours later, Dallas Police Officers Amy Anderson and Christopher Slone spotted the stolen U

- Haul van parked at a convenience store. When Officers Anderson and Slone pulled up into the conven ience store parking lot, appellant was the only person in the van. Although he was sitting in the passenger’s seat, he told the officers that he was the driver of the van. When asked where he got the van, appellant told the officers he got the van from “so me dude” at an unknown neighboring apartment complex

. When appellant exited the van, a jacket fell from his lap to the ground. Officer Slone noticed that the jacket was a U

- Haul jacket. The jacket was tan with a “U

- Haul” logo and a dark

colored lining. Officer Slone also stated that once appellant was taken into custody, the officers discovered that he was wearing multiple layers of clothing. Officer Anderson testified that appellant’s dark

- colored clothing includ ed dark

- colored pants with a whi te or gray stripe at the bottom of the leg. Officers Anderson and Slone took appellant into custody for possessing a stolen vehicle.– 3

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Officer Slay drove to the convenience store to meet Officers Anderson and Slone

. He testified that upon seeing appellant , he noticed that appellant ’s shoes and pants exactly matched the shoes and pants worn by the intruder in the U

- Haul Center surveillance video. He further testified that appellant was in possession of all the items that had been stolen from the U

- Haul Cente r . Appellant was charged with burglary of a building , and a jury found him guilty as charged. After he pled true to two enhancement s , the jury sentenced him to ten years in prison. Appellant appeals the trial court’s judgment. DISCUSSION A. Sufficiency of the Evidence In his first issue, appellant arg ues that the evidence is insufficient to support his conviction for burglary of a building because there is no e vidence that he was the person who committed the burglary. A person commits the offense of burgl ary of a building if , without the effective consent of the owner, the person enters a building and commit s theft. T EX
. P ENAL C ODE A NN . § 30.02(a) ( 3 )

. The State was required to prove beyond a reasonable doubt that appellant was the person who committed the offense. Roberson v. State , 16 S.W.3d 156, 167 (Tex. App.

— Austin 2000, pet. ref’d). Appellant contends that there is no evidence to establish his identity as the perpetrator of the burglary because the U

- Haul surveillance videos did not show the race, gender, face, hands, or any identifying marks of the person burglarizing the store. However, identity may be established by “either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence.” Gardner v. State , 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). Two hours after the burglary, police officers found appellant in possession of the stolen U

Haul van and all of the other items stolen from the U

- Haul Center

. Appellant insists that this is n ot proof that he is the person who committed the burglary; it is only proof that he was in possession of stolen items

. A defendant’s unexplained possession of property recently stolen in a burglary– 4

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permits an inference that the defendant is the one who com mitted the offense. Rollerson v. State , 227 S.W.3d 718, 725 (Tex. Crim. App. 2007). However, i f a defendant offers a n explanation for his possession of stolen property, the record must demonstrate that his explanation is false or unreasonable. Adams v. Sta te , 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). W hether the defendant’s explanation for possessin g recently stolen property is true or reasonable is an issue to be determined by the trier of fact. Id . The falsity or unreasonableness of the explanation may be shown by circumstantial evidence. Reyes v. State , 422 S.W.3d 18, 24 (Tex. App.

— Waco 2013, pet. ref’d). Direct evidence refuting the explanation is not required. Id . at 25. When Officer Slone asked a ppellant to explain how he came to be in possession of the U

- Haul
van, a ppellant told him that he got the van from “some dude” at a nearby apartment complex. Appellant could not give Officer Slo n e the name of the person who gave him the van or the name

o f the apartment complex where this transfer took place. The jury could have concluded that

a ppellant ’s assertion that he acquired the stolen van and all of the stolen property from an unknown
person in an unnamed apartment complex was either false or unrea sonable. Zetina testif

ied that after watching the surveillance video of the burglary, she thought that the burglar could have been a former employee because the burglar seemed to know his way around the building and knew where various items were stored. She also testified that a ppellant had previously worked for her at the U

- Haul Center that was burglarized. According to Zetina, all employees are provided with U

- Haul jackets. The outside of a U

- Haul jacket is khaki with a U

Haul logo on the left side , and the inside lining is black with diamond

- pattern stitching. Zetina opined that the burglar in the surveillance video appear ed to be wearing a U

- Haul jacket turned inside out because the diamond

- pattern stitching wa s visible. Zetina also noted that the surveillance video showed that the burglar was wearing more than one pair of pants. When a ppellant was taken into custody, he was wearing several pairs of pants.– 5

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Officer Slay testi fied about the distinctive clothing and shoes th at a ppellant was wearing when he was apprehended

— clothing and shoes that Officer Slay maintained was an exact match
to the clothing and shoes the burglar was wearing in the surveillance video from the U

- Haul Center. He also stated that the distinctive diam ond

- shaped stitching on the jacket the burglar was wearing in the surveillance video led him to believe it was a U

- Haul jacket turned inside out. Officers Anderson and Sloan both testified that when a ppellant exited the U

- Haul van, a black and tan jacket f ell from his lap to the ground. Both officers stated that a ppellant ’s jacket appeared to be similar to the U

- Haul jacket that the State presented as demonstrative evidence at trial. Officer Anderson described all of the U

- Haul merchandise found in the st olen U

- Haul van. Zetina and Officer Slay testified that the surveillance video showed the burglar removing th o se exact items from the U

- Haul Center

. “The standard of review for determining the legal sufficiency of the evidence to support a conviction is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Villa v. State , 514 S.W.3d 227, 232 (Tex. Crim. App. 2017 ). We defer to the “responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Such deference extends to the inferences drawn from the evidence so long as the inferences are reasonable ones supported by the evidence and are not mere speculation. Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Viewing the evidence in the light m ost favorable to the verdict, a rational factfinder could have found beyond a reasonable doubt that

a ppellant was the person who committed the burglary. Jackso n , 443 U.S. at 319. We overrule appellant’s first issue.– 6

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B. Admissi bility of Intake Photographs In his second issue, a ppellant contends the trial court erred by admitting intake photographs of a ppellant ’s clothing and personal property that were taken at the time of his arrest. He asserts that the State failed to provide any justifiable reason for its delay in turning over the photographs. And he argues that the trial court should have excluded the evidence for “willful prosecutorial defiance of a discovery order.” On Friday, July 21, 2017, a ppellant filed a discovery motion, requesting that the S tate produce any evidence that may be relevant to his guilt or innocence. The following Monday, July 24, t he State provided defense counsel with photographs of the clothing a ppellant was wearing and the personal property a ppellant had in his possession a t the time he was arrest ed

. The trial began the following day , on July 25

. On the morning of the 25th, immediately before trial began ,
a ppellant objected to the admissibil ity of the photographs . He argued that because the State’s case relied heavily on a pp ellant ’s clothing and property to link him to the offense, the photographs were highly prejudicial . He also argued that the photographs were not produced in a timely manner . He asserted that if he had been made aware of their existence, it might have chang ed his approach in plea negotiations with the State. The trial court overruled his objection. Later, w hen the State offered the photographs of a ppellant ’s clothing and personal property as State’s Exhibits 24 through 38 , d efense counsel stated that he had no objection.
T he trial court did not abuse its discretion by admitting the photographs. The State wa s required to produce discovery to a ppellant “as soon as practicable after receiving a timely request from the defendant.” T EX
. C ODE C RIM
. P ROC
. A NN . art. 39.14(a). Appellant filed his motion requesting discovery on Friday, July 21. The record does not contain an order reflecting that the trial court ruled on a ppellant ’s motion or otherwise imposed discovery deadlines. Nevertheless,
t he State provided the photographs to a ppellant three days after h e requested discovery

— on Monday, July 24

. Appellant suggests that because he received the photographs the day before trial ,– 7

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the State had unreasonably delayed providing him with the photograp hs. But there was no delay. Appellant filed his motion on Friday , and the State responded on Monday, the next business day. Appellant ’s argument that the photographs should have be en excluded is without merit. In this context, exclusion of evidence is essentially a sanction for prosecutorial misconduct . W hether the trial court should exclude evidence on this basis depends on whether the prosecutor disobey ed the discovery order and willfully withheld evidence

. Francis v. State , 428 S.W.3d 850, 855 (Tex. Crim. App. 2014). “Extreme negligence or even recklessness on the prosecutor’s part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding relevant evidence.” Id . In this case, n either the record nor the law support s a ppellant ’s argument for exclu ding the intake photographs. We examine a trial court’s decision to admit or exclude evidence for an abuse of discretion. Henley v. State , 493 S.W.3d 77, 82

– 83 (Tex. Crim. App. 2016). A trial court abuses its discre tion when its decision falls outside the zone of reasonable disagreement. Id . at 83. There is nothing in the record to indicate that the prosecutor disobeyed a discovery order, willfully withheld evidence, or delayed in producing the photographs to a ppella nt

. We conclude the trial court did not abuse its discretion in admitting the photographs. Appellant ’s second issue is overruled. CONCLUSION Having overruled both of a ppellant ’s issues, we affirm the trial court’s judgment.

Do Not Publish T EX
. R. A PP
. P . 47 170959F.U05 /Jason Boatright/ JASON BOATRIGHT JUSTICE– 8

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## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
DARRYL PAUL GAMBLE, Appellant
No. 05

- 17

- 00959

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 1, Dallas County, Texas Trial Court Cause No. F

- 1754557

- H. Opinion delivered by Justice Boatright. Justices Stoddart and Whitehill participating. Based on the Court’s opinion of this date, the judgment of the trial court is A FFIRMED

. Judgment entered this 28th day of November, 2018.