McCleskey v. State

• Decision Date: 05 June 1996
• Docket Number: No. 09-95-055CR,09-95-055CR
• Citation: 924 S.W.2d 427
• Parties: Jerry Glen McCLESKEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 427

924 S.W.2d 427

Jerry Glen McCLESKEY, Appellant, v. The STATE of Texas, Appellee.

No. 09-95-055CR.

Court of Appeals of Texas,

Beaumont.

Submitted March 28, 1996.

Decided June 5, 1996.

Stephen C. Taylor, Galveston, for appellant.

John S. Holleman, District Attorney, Livingston, for the State.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

BURGESS, Justice.

Jerry Glen McCleskey was found guilty by a jury of burglary of a habitation and sentenced by the court to forty years' confinement in the Institutional Division of the Texas Department of Corrections. McCleskey raises six points of error.

TEX.PENAL CODE ANN. § 30.02(a)(1) & (3) (Vernon 1994) provides a person commits burglary if, without the effective consent of the owner, he enters a habitation with intent to commit theft or enters a habitation and commits or attempts to commit theft. In his first point of error, McCleskey contends the evidence was legally insufficient to support his conviction for burglary in that the State failed to prove, beyond a reasonable doubt, that he entered the habitation.

In reviewing the sufficiency of the evidence, we determine whether, after viewing the evidence in the light most favorable to the prosecution, 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993). This is true whether the evidence is direct or circumstantial. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). The trier of fact can draw reasonable inferences and make deductions from the evidence. Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex.App.--Beaumont 1993, pet. ref'd).

In the present case, the State's only evidence consisted of fingerprints on the broken window pane at the point of entry being identified as McCleskey's. No fingerprints inside the house were identified as McCleskey's; there was no evidence McCleskey was seen in the house or in the area during the ten-day period in which the burglary occurred; and there was no evidence of stolen goods being found in his possession.

A fingerprint outside the habitation has been held to be insufficient evidence, standing alone, of entry. In Hood v. State, 860 S.W.2d 931, 933 (Tex.App.--Texarkana 1993, no pet.), a fingerprint identified as appellant's was found on the outside just below a broken window pane. The court found "[t]he fingerprint does not demonstrate that [appellant] actually entered the home, and therefore, although the fingerprint does provide some evidence that [appellant] may have been at the home at some time, it does not, in itself, establish that he committed the burglary." Id. at 934. The court noted that in Phelps v. State, 594 S.W.2d 434, 436 (Tex.Crim.App.1980), where fingerprints alone were sufficient to sustain a conviction, the fingerprints were found inside the home. Accord Gomez v. State, 905 S.W.2d 735 (Tex.App.--Houston [14th Dist.] 1995, pet. granted); Penton v. State, 799 S.W.2d 364 (Tex.App.--Houston [14th Dist.] 1990, no pet.); Nieto v. State, 767 S.W.2d 905 (Tex.App.--Corpus Christi 1989, no pet.). See also Walker v. State, 652 S.W.2d 438 (Tex.App.--Tyler 1983, pet. ref'd) (prints were found on inside, as well as outside, of glass pane removed to gain entry).

A number of cases have found the evidence sufficient where an appellant's fingerprints were found at the point of entry and witness' testimony placed a strange person inside the habitation at such a time as indicated the prints were necessarily made at the time of the burglary. Brown v. State, 881 S.W.2d 582 (Tex.App.--Corpus Christi 1994, no pet); Mathew v. State, 839 S.W.2d 110 (Tex.App.--Corpus Christi 1992, no pet.); Koster v. State, 773 S.W.2d 763 (Tex.App.--Beaumont 1989, pet ref'd); Nguyen v. State, 783 S.W.2d 1 (Tex.App.--Dallas, 1989, no pet.); Servin v State, 745 S.W.2d 40 (Tex.App.--Houston [14th Dist.] 1987, no pet.); Washington v. State, 721 S.W.2d 502 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd).

Where an appellant's fingerprints were found on the outside at the point of entry and the court found sufficient evidence to sustain the conviction, other evidence implicated appellant. In Smith v. State, 768 S.W.2d 478 (Tex.App.--Houston [1st Dist.] 1989, no pet.), in addition to appellant's fingerprints on the outside of the store window, stolen goods were found in appellant's possession and appellant gave an alias when arrested. Similarly, in Lanes v. State, 711 S.W.2d 403 (Tex.App.--Beaumont 1986), reversed on other grounds, 767 S.W.2d 789 (Tex.Crim.App.1989), not only were appellant's fingerprints found on the outside of a window at the point of entry but the window was on an entirely screened-in back porch and the screen had been cut. And in Anderson v. State, 672 S.W.2d 14 (Tex.App.--Houston [14th Dist.] 1984, no pet.), the window screen was removed and the prints were found on the glass underneath.

Likewise, in Broussard v. State,...