NUMBER 13-10-00302-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI—EDINBURG

____________________________________________________

JOSE GUTIERREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court

of Nueces County, Texas

____________________________________________________

MEMORANDUM OPINION

Before Justices Benavides, Vela, and Perkes

Memorandum Opinion by Justice Perkes

A jury convicted appellant, Jose Gutierrez, of the offense of burglary of a habitation. 

See TEX. PENAL CODE § 30.02 (West 2003). The trial court assessed punishment at five 

years confinement in the Institutional Division of the Texas Department of Criminal Justice. 

In a single issue, Gutierrez contends the evidence is legally insufficient to establish that he 

committed the offense of burglary of a habitation. We affirm.
2

I. BACKGROUND

A. State’s Evidence 

The complainant, Ruperto Garcia (―Mr. Garcia‖) testified that around 2:00 or 2:30 

a.m. on March 20, 2010, he arrived home to find his home being burglarized. Mr. Garcia 

saw Marvin Sanchez1and Gutierrez exit his home, and enter into a Toyota pickup truck 

which was parked in front of the house. Mr. Garcia saw that Gutierrez was carrying some 

DVDs and saw him place them in the back of the Toyota pickup truck. Mr. Garcia followed 

the truck for a few blocks, obtained the license plate number, and returned home to call the 

police. Mr. Garcia reported to the police that his house was burglarized and told the police 

the truck’s license plate number. Mr. Garcia testified that his bedroom window had been 

opened, the blinds were scattered, property was strewn throughout the house, and that he 

saw some DVDs in the front yard. Mr. Garcia testified that even though the light switch 

remained on, it was apparent that the light bulb in the front porch was unscrewed to an off 

position because a child’s chair was placed directly beneath it to serve as a step stool to 

reach the bulb. Mr. Garcia testified that some of the property missing from his house 

included a laptop computer, a DVD player, and several DVDs, including ―Dora, the 

Explorer.‖ 

The police department issued a dispatch regarding the burglary and gave a 

description of the Toyota pickup truck and its license plate number. Officer Lee Galloway 

responded to the dispatch and drove to Mr. Garcia’s residence. Officer Galloway testified 

that he found some DVDs in Mr. Garcia’s yard. He further testified that a bedroom window 

was halfway open and that the porch light was off, with a chair underneath it. 

 

1 Marvin Sanchez was also indicted for this offense, but was not tried together with appellant. 
3

Officer Gabe Garcia testified that he responded to the dispatch by driving to 129 

Mohawk, the residence where the truck was registered. Upon arrival, Officer Garcia 

shined a spot light on a Toyota pickup truck and confirmed the license plate matched the 

license plate number identified in the police dispatch. Officer Garcia saw Gutierrez exit the 

truck’s passenger side with an object in his hand and hide behind a brick pillar. He 

ordered Gutierrez to move from behind the pillar, after which he was handcuffed. Officer 

Garcia testified that Officer Galloway told him that some children’s DVDs were stolen from 

Mr. Garcia’s home. Officer Garcia looked inside the Toyota pickup truck and saw a child’s 

DVD entitled ―Dora, the Explorer,‖ inside the truck. Thereafter, Mr. Garcia identified 

Gutierrez during a field identification as one of the men he saw burglarizing his home, and 

stated that Gutierrez was wearing the same clothing as he did when he saw Gutierrez 

leaving his home.

Detective Trujillo testified during cross-examination that Marvin Sanchez, the other 

person identified by Mr. Garcia on the night of the burglary, stated Gutierrez was involved 

in the burglary. 

B. Defendant’s Evidence

Gutierrez did not testify at trial. Gutierrez’s grandmother, with whom he lives, 

testified that Gutierrez was home at the time of the burglary. Officer Garcia testified on 

cross-examination that he did not check the Toyota pickup truck to see if it had been 

recently driven. Officer Kelly Martinez testified on cross-examination that no elimination 

fingerprints were taken. Mr. Garcia testified on cross-examination that he was burglarized 

about two and a half weeks prior to this incident, and that he had concluded Gutierrez was 

involved in that burglary. 
4

II. STANDARD OF REVIEW

When reviewing legal sufficiency, the court must ask itself whether, after reviewing 

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— not whether 

it believes the evidence establishes the verdict beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 318–19 (1979). The jury is the sole judge of a witness's credibility 

and the weight to be given the testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008). The reviewing court should not act as a thirteenth juror that substitutes 

its own opinion of the credibility and weight of the evidence for that of the fact-finder's. 

See Brooks v. State, 323 S.W.3d 893, 905 (Tex. Crim. App. 2010). Instead, the reviewing 

court must resolve inconsistencies in testimony in favor of the verdict and then ask 

whether a rational trier of fact could have found the elements of the crime beyond a 

reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). 

To measure legal sufficiency, we use the elements of the offense as defined by a 

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009). Such a charge is one that accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily 

restrict the State's theories of liability, and adequately describes the particular offense for 

which the defendant was tried. Id. A person commits the offense of burglary if, without the 

effective consent of the owner, he or she enters a habitation with intent to commit theft.

TEX. PENAL CODE ANN. § 30.02 (a)(1) (West 2003). 

It is not necessary that the evidence directly prove the defendant's guilt; 

circumstantial evidence is as probative as direct evidence in establishing the guilt of the 
5

actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. 

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kuciemba v. State, 310 S.W.3d 460, 462 

(Tex. Crim. App. 2010). A fact-finder may support its verdict with reasonable inferences 

drawn from the evidence, and it is up to the fact-finder to decide which inference is most 

reasonable. Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009). The State may 

show entry by circumstantial evidence or inference. Gilbertson v. State, 563 S.W.2d 606, 

608–09 (Tex. Crim. App. 1978). 

III. ANALYSIS

Mr. Garcia identified Gutierrez as one of the two persons that he saw leaving his 

house in the early morning hours of March 20, 2010. He described the vehicle and license 

plate number. Officer Garcia identified Gutierrez as the person who exited the described 

Toyota pickup truck that he saw at Gutierrez’s grandmother’s home, and who immediately 

hid behind a brick pillar. An eyewitness’s testimony identifying the defendant is sufficient, 

standing alone, to support the conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. 

Crim. App. 1971). Further, the defendant’s hiding and efforts to avoid apprehension 

immediately after the offense likewise create an inference of guilt. See Hernandez v. 

State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997); Burks v. State, 876 S.W.2d 877, 888 

(Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114 (1995).

Additionally, Mr. Garcia reported he was missing, among other things, a children’s

DVD entitled ―Dora, the Explorer.” A copy of this DVD was found in the Toyota pickup 

truck. Gutierrez provided no explanation for his possession of this DVD. A defendant’s 

unexplained possession of property recently stolen in a burglary permits an inference that 

the defendant is the one who committed the burglary. Rollerson v. State, 227 S.W.3d 718, 
6

725 (Tex. Crim. App. 2007) (citing Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 

2006)). A fact finder is entitled to draw multiple reasonable inferences as long as each 

inference is supported by the evidence presented at trial. Hooper v. State, 214, S.W.3d 9, 

15 (Tex. Crim. App. 2007). 

With respect to Gutierrez’s alibi witness, the jury, as the trier of fact, is the sole 

judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. 

State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or 

disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 

(Tex. Crim. App. 1986). We presume that the trier of fact resolved conflicts in favor of 

conviction. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In reviewing all of 

the evidence presented at trial in the light most favorable to the verdict, we find that it 

proves beyond a reasonable doubt that Gutierrez committed the crime for which the jury 

found him guilty. We overrule the sole issue for review.

III. CONCLUSION

We affirm the trial court’s judgment. 

______________________________

GREGORY T. PERKES

Justice

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

Delivered and filed the 

22nd day of August, 2011.