## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 13

- 00202

- CR

MOSES LAROME MILLER, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1 Hunt County, Texas Trial Court No. CR1300261

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss2 

### MEMORANDUM OPINION
Late one night, Moses Larome Miller was caught red

- handed rummaging through vehicles owned by Kristina Moyer and Brittney Zebendon, Kristina’s sister

- in

- law. Shortly after Kristina discovered the hooded Miller searching the vehicles outside her residence, she told certain family memb ers, and Kristina’s father, Kenneth Moyer, took up a pistol, went outside, and confronted Miller, interrupting Miller’s search of the vehicles. Though nothing was missing from either vehicle, the episode resulted in Miller’s conviction for burglary of a v ehicle. 1 On appeal, Miller asserts that he was denied the effective assistance of counsel, because his trial counsel waived the court reporter’s recording the voir

- dire proceedings, and that insufficient evidence supports his conviction. We affirm the j udgment of the trial court because (1) Miller’s claim of ineffective assistance is meritless, and (2) legally sufficient evidence supports Miller’s conviction. (1) Miller’s Claim of Ineffective Assistance Is Meritless Miller argues that his counsel’s waiv er of the stenographic recording of voir

- dire proceedings prevented him from preserving appellate review of his Batson challenge. 2 The record s hows that, even though the voir

- dire proceedings were not recorded, the Batson challenge was preserved by the re porter’s stenographic recording.

1 The trial court sentenced Miller to 365 days’ confinement in Hunt Coun ty Jail, ordered him to pay a $4,000.00 fine, and assessed $268.0 0 in court costs against him.

2 Ineffective assistance of counsel claims that have merit are reviewed under the t wo - pronged Strickland test handed down by the United States Supreme Court. Strickland v. Washington , 466 U.S. 668 (1984); Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009).3 Miller, an African American, challenged the State’s decision to strike Magdalene Denmark, an African

- American woman who was not questioned by either side during voir dire. 3 Miller pointed out that, because the only other African

- American veniremember was dismissed for health reasons by agreement of the parties, no African Americans were on the jury panel after the State struck Denmark. Thus, Miller claims, the State struck Denmark to prevent an African American from servi ng on the jury. The State responded that it struck Denmark because she did not answer the question posed to all veniremembers of whether they had ever been accused of a criminal offense. Through other means, the State learned that Denmark had been convicted in 1987 of driving while intoxicated and twice in 1994 of public intoxication. Denmark’s failure to disclose these prior convictions was the reason proffered by the State for striking her. 4 To further its race

neutral explanation for striking D enmark, the State indicated that it had also struck another juror, who was not African American, because of his criminal history. The trial court found that the State provided a race

- neutral reason for striking Denmark and overruled Miller’s Batson chal lenge. It then asked Miller if he had anything else to present on that issue, and Miller responded negatively. The entire Batson hearing was stenographically recorded and transcribed and is a part of the appellate record before us. We find that, had Mil ler claimed error related to this Batson challenge, the claim was preserved for appellate review. He suggests no other Batson challenge. Therefore, Miller’s

3 Because this juror was not questioned by either attorney, a ste nographic recording of the voir

- dire proceedings would not have provided any informa tion relevant to Miller’s Batson challenge.

4 The State also claimed that, although Denmark was asked the same questions posed to the rest of the panel , she remained quiet and unresponsive.4 complaint of ineffective assistance stemming from counsel’s waiver of a stenographic recording is meritless and is overruled. 5 (2) Legally Sufficient Evidence Supports Miller’s Conviction In his other point of error, Miller attacks the legal sufficiency of the evidence only with respect to the element of the intent to commit theft. He argues that i ntent was not established because (a) there were no items taken from the cars and (b) there was testimony that Miller was merely looking for a cigarette lighter. Section 30.04 of the Texas Penal Code requires the element of intent; “the State is not requi red to prove any actual taking.” Jones v. State , 482 S.W.2d 634, 636 (Tex. Crim. App. 1972); see B rown v. State , 294 S.W.3d 203, 208 (Tex. App.

— Texarkana 2009, no pet.); T EX
. P ENAL C ODE A NN
. § 30.04(a) (West 2011 )

. In evaluating legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found beyond a reasonable doubt the essential elements of the offense. Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim . App. 2010) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)); Hartsfield v. State , 305 S.W.3d 859, 863 (Tex. App.

— Texarkana 2010, pet. ref’d) (citing Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We give deference to the responsibi lity of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson , 443 U.S. at 318

– 19).

5 Miller does not ask this Court to review the trial court’s rul ing on his Batson challenge.5 Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “sets out the law, is authorize d 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 off ense of burglary of a motor vehicle if (1) he or she , (2) without the effective consent of the owner, (2) breaks into or enters a vehicle or any part of a vehicle (4) with the intent to commit any felony or theft. T EX
. P ENAL C ODE A NN
. § 30.04(a). As
ment ioned, Miller attacks only the intent element. “ [ I ] ntent to commit theft can be inferred from the circumstances.” Simmons v. State , 590 S.W.2d 137, 138 (Tex. Crim. App. [Panel Op.] 1979); Brown , 294 S.W.3d at 208; Coleman v. State , 832 S.W.2d 409, 413 (Tex. App.

— Houston [1st Dist.] 1992, pet. ref’d)). “[P]roperty need not be taken for proof of intent to commit theft to be sufficient .” Id. (citing Ortega v. State , 626 S.W.2d 746, 749 (Tex. Crim. App. [Panel O p.] 1981)). The uncon tradicted evidence was that Kristina’s and Brittney’s vehicles were locked when they left them. Under the cover of night, Miller entered the vehicles without consent and searched through the contents of the vehicles, leaving them in complete disarray. Co nsidering the effort expended in breaking into the cars and the thoroughness of the search, the jury was free to determine that Miller’s claim to Kenneth that he was only looking for a cigarette lighter was false. Further, although he did not get very far , Miller attempted to walk away from Kenneth6 after he had been caught inside Kristina’s vehicle. A reasonable jury could rationally conclude that Miller’s attempt to flee evidenced his criminal intent. It was within the jury’s province to find that Mille r had the intent to commit theft based on the circumstances of this case. See
Brown , 294 S.W.3d at 210. Viewing the evidence in the light most favorable to the verdict, we find the evidence legally sufficient to sustain Miller’s conviction. We affirm t he trial court’s judgment.

Josh R. Morriss, III Chief Justice Date Submitted: February 4, 2014 Date Decided: February 27 , 2014 Do Not Publish