Josh Stubblefield Jr. v. The State of Texas

Nicholas Meza testified that on November 14, 2015, when he arrived at his

family’s vacation house in Bedias, Texas, he discovered that someone had cut the

wire fence surrounding his property and had cut the lock off of one of his storage

sheds. He noted that his “dirt bike” and several of his tools were missing, i.e., a

chainsaw, table saw, and an air compressor. Meza then discovered that the sliding

glass door of his house had been broken and the glass shattered. He noted that his

refrigerator door was open and “a lot of food was taken out of there.” Also, a monitor

and speaker were missing. Meza explained that he had not given anyone consent to

be in his house or to remove any items. And security cameras at Meza’s house

recorded the burglary on videotape.

Grimes County Sheriff’s Department (“GCSO”) Deputy S. Siracusa testified

that on November 14, 2015, he was dispatched to investigate the burglary of Meza’s

house. Siracusa noted that the wire fence surrounding Meza’s property had been cut

and a lock, which had been cut from a storage shed door, was lying near the cut in

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the fence. He also noted broken glass surrounding a broken sliding glass door of the

house and that the kitchen was in disarray, with several drawers pulled open.

Siracusa attempted, but was unable, to recover fingerprints. He did obtain the “black

box” to Meza’s security cameras to view their images at the GCSO.

Grimes County Precinct One Constable D. Schaper testified that on November

14, 2015, Meza telephoned him about a burglary, and he went to Meza’s house to

investigate. Schaper noted that a wire fence had been cut and a sliding glass door

on the house had been broken and was surrounded by shattered glass. He also saw

several refrigerator food items, i.e., bacon, eggs, and juice, on the outside steps of

the house. Schaper noted that, inside Meza’s house, the burglar had cut a cable

connecting Meza’s security system to a monitor and had taken the monitor, but had

left behind the actual recorder containing the security system’s videotapes.

Constable Schaper further testified that he later went to the GCSO and viewed

the images captured by Meza’s security cameras. On the videotapes are two

individuals, one wearing a mask and one without. The man on the videotapes

showing his face is seen carrying a set of bolt cutters. Schaper “instantly” recognized

the individual carrying the bolt cutters as appellant. He explained as follows:

I’ve known Josh for years. I mean, like I said, I know most of the people up there in the Bedias area. I’ve run into him on several occasions. I think I’ve had to take him in custody a time or two on maybe some blue warrants or something like that. It’s a— you know, a small community and pretty much everybody knows everybody up there.

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After Schaper informed GCSD Investigator J. Jones of his identification of

appellant, a warrant was issued for appellant’s arrest. When Schaper attempted to

execute the warrant, however, appellant ran from him.

Investigator Jones testified that he, together with Constable Schaper and

GCSD Captain Jarvis, viewed the videotapes from Meza’s security system. Jones

explained that the videotapes shows a burglary taking place and Schaper identified

appellant as one of the perpetrators. Jones also pulled a previous booking

photograph of appellant and compared it to still images from the security videotapes.

He then filed an arrest warrant for appellant. The trial court admitted into evidence

the security camera videotapes and still photographs captured from the video.

After the Madison County Sheriff’s Office (“MCSO”) notified Investigator

Jones that it had appellant in custody, Jones went to the MCSO, where he conducted

a recorded interview of appellant. During the interview, appellant denied having

been involved in the burglary. However, he admitted that he had pawned some items

at a pawn shop, “Atlas Pawn,” that he had “acquired” from a person named, “Ricky,”

whom he described as a white male from Arkansas, living at a local “RV park.”

When Jones showed appellant one of the still photographs from Meza’s security

camera videotapes, appellant was “startled.” And he studied it for some time before

asking, “Do you think this is me?” Jones replied, “Yes, sir. I believe that’s you.”

Appellant then said, “Well, if that’s all you got, we’re going to court.” He then,

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however, began trying to “make an arrangement” with Jones, claiming that he “knew

some drug dealers that he could help [Jones] with if [Jones] could help him with this

burglary.”

Investigator Jones further testified that he went to “Atlas Cash & Pawn” and

obtained a copy of a pawn ticket, dated November 14, 2015, bearing appellant’s

name. Jones then sent photographs of the items that appellant had pawned, i.e., a

chainsaw and a table saw, to Meza, who positively identified them as those stolen

from his storage shed. The trial court admitted into evidence the receipt from Atlas

Cash and Pawn.

Kevin Herd testified that in October 2015, while he and appellant were outside

appellant’s house, a white male named “Rick,” who wore a “cowboy hat” and a “belt

buckle,” pulled up in a white “dually.” Rick had a chainsaw and table saw in his

truck and offered to sell them to appellant. And Herd saw appellant purchase the

items.

Standard of Review

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the trial court’s judgment to determine

whether 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, 318–19, 99

S. Ct. 2781, 2788–89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

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App. 2007). Our role is that of a due process safeguard, ensuring only the rationality

of the trier of fact’s finding of the essential elements of the offense beyond a

reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

1988). We give deference to the responsibility of the fact finder to fairly resolve

conflicts in testimony, weigh evidence, and draw reasonable inferences from the

facts. Williams, 235 S.W.3d at 750; Johnson v. State, 419 S.W.3d 665, 671 (Tex.

App.—Houston [1st Dist.] 2013, pet. ref’d). The fact finder, as the judge of the facts

and credibility of the witnesses, may choose to believe or not to believe the

witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d). Our duty requires us “to ensure that the

evidence presented actually supports a conclusion that the defendant committed” the

criminal offense of which he is accused. Williams, 235 S.W.3d at 750.

Sufficiency of the Evidence

In his first issue, appellant argues that the evidence is legally insufficient to

support his conviction for burglary of a habitation because the State did not establish

his identity as the perpetrator of the offense.

A person commits the offense of burglary of a habitation if, without the

effective consent of the owner, the person enters a habitation with the intent to

commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2011); Morgan v.

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State, 501 S.W.3d 84, 90 (Tex. Crim. App. 2016). A person commits theft if he

unlawfully appropriates property with intent to deprive the owner of the property.

See TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2016); Byrd v. State, 336

S.W.3d 242, 250 (Tex. Crim. App. 2011). The State may prove the defendant’s

identity and criminal culpability 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).

Meza testified that a person, without his consent, cut his wire fence, shattered

a sliding glass door, entered his house, cut a cable connecting his security system to

a monitor, and removed his monitor and a speaker. See TEX. PENAL CODE ANN.

§ 30.02(a)(1) (burglary of a habitation); id. § 31.03(a) (theft); see also id. § 30.01(1)

(Vernon 2011) (“Habitation” means structure adapted for overnight accommodation

of persons”). The person also cut a lock off of Meza’s storage shed and removed his

“dirt bike,” chainsaw, table saw, and air compressor. See Darby v. State, 960 S.W.2d

370, 371 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (unattached garage in

which complainant stored personal items within statutory definition of “habitation”).

Constable Schaper testified that he “instantly” recognized appellant, who is

seen carrying bolt cutters on Meza’s security camera videotapes, as follows:

Q: . . . And when you said that you recognized him as Josh in the video, how long did it take you to recognize him?



A. Instantly. Just instantly, it was Josh.

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Schaper explained:

I’ve known Josh for years. I mean, like I said, I know most of the people up there in the Bedias area. I’ve run into him on several occasions. I think I’ve had to take him in custody a time or two on maybe some blue warrants or something like that. It’s a— you know, a small community and pretty much everybody knows everybody up there.



Thus, Schaper, who knew appellant well, positively identified him as one of the

burglars. A positive identification of a defendant as the perpetrator is sufficient to

support a conviction. See Criff v. State, 438 S.W.3d 134, 137–38 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d) (evidence legally sufficient to identify

defendant as perpetrator where witness recognized defendant as past acquaintance

and customer and made positive identification); see, e.g., Handy v. State,

01-99-00997-CR, 2000 WL 234321, at *2 (Tex. App.—Houston [1st Dist.] Mar. 2,

2000, pet. ref’d) (not designated for publication) (evidence legally sufficient to

support conviction for burglary of habitation where law enforcement officer

positively identified defendant); Gonzales v. State, 13-09-00640-CR, 2011 WL

5843686, at *4 (Tex. App.—Corpus Christi Nov. 22, 2011, pet. ref’d) (mem. op.,

not designated for publication) (evidence legally sufficient where law enforcement

officer recognized defendant on surveillance videotape as person known to him and

another officer confirmed, based on video, defendant as perpetrator).

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The videotapes in evidence show two individuals, at 2:57 a.m. on November

11, 2015, stepping onto a porch outside of Meza’s house, walking around on the

porch, and shining a flashlight in through the windows. One individual is masked

and carrying a bag. The unmasked face of the man identified as appellant is fairly

clear, and his features are discernible. He is also clearly carrying a set of bolt cutters.

Videotape from a camera inside of Meza’s house shows appellant, moments later,

walking through the living room. The still photographs taken from the videotapes

offer a closer view of appellant’s face, but it is not as clear as in the videotapes. The

trial court was able to compare the man seen in the videotapes and still photographs

to appellant in the courtroom. See, e.g., Perales v. State, No. 02-13-00458-CR, 2014

WL 3778275, at *2 (Tex. App.—Fort Worth July 31, 2014, no pet.) (mem. op., not

designated for publication) (evidence sufficient to identify defendant as burglar

where videotape displayed several characteristics of defendant and fact finder able

to compare man in footage with defendant in court); Johnson v. State, No.

06-13-00073-CR, 2013 WL 4470179, at *3 (Tex. App.—Texarkana Aug. 20, 2013,

no pet.) (mem. op., not designated for publication) (“While the surveillance video

recording from Cash America is not clear, the jury could see that the physical

characteristics of the person representing himself as Johnson to Perez at the time of

the transaction matched Johnson’s appearance in court.”).

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Schaper further testified that when he attempted to execute a warrant for

appellant’s arrest, appellant ran from him. Evidence of flight is a circumstance from

which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845, 859

(Tex. Crim. App. 1989) (“Flight is no less relevant if it is only flight from custody

or to avoid arrest.”).

The evidence also reveals that four days after the burglary occurred, appellant

pawned a chainsaw and table saw at a pawn shop. And Meza identified the chainsaw

and table saw as those taken from his storage shed. “[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, 725 (Tex. Crim. App. 2007). Although Investigator Jones testified that

appellant explained that he had “acquired” the items he pawned from “Ricky,”

whom appellant described as a white male from Arkansas living at a local “RV

park,” and Herd testified that he saw appellant purchase the items from “Rick,” the

trial court could have chosen to disbelieve appellant’s version of the facts and Herd’s

testimony. The fact finder is the exclusive judge of the facts, the credibility of the

witnesses, and the weight to be given the witness’ testimony. See Sharp, 707 S.W.2d

at 614.

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From the evidence, the trial court could have reasonably concluded that

appellant, without the effective consent of Meza, entered a habitation with the intent

to commit theft. See TEX. PENAL CODE ANN. § 30.02(a)(1).

Appellant argues that the evidence is legally insufficient because Constable

Schaper was the only witness to identify him. However, a conviction may be based

on the testimony of a single witness. Santiago v. State, 425 S.W.3d 437, 443 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d); see also Aguilar v. State, 468 S.W.2d

75, 77 (Tex. Crim. App. 1971) (upholding conviction for attempted murder where

single witness saw appellant with gun).

Appellant further argues that the evidence is legally insufficient because

Constable Schaper admitted that the quality of the security system’s videotapes was

not the best that he had seen, acknowledged the possibility that he was mistaken, and

did not see any of appellant’s tattoos on the man seen in the videotapes. However,

again, the fact finder is the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given the witness’ testimony. Sharp, 707 S.W.2d at

614; Johnson, 419 S.W.3d at 671.

Viewing the evidence in the light most favorable to the trial court’s judgment,

we conclude that the trial court could have found beyond a reasonable doubt that

appellant, without the effective consent of Meza, entered a habitation with the intent

to commit theft. See TEX. PENAL CODE ANN. § 30.02(a)(1); Jackson, 443 U.S. at

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318–19, 99 S. Ct. at 2788–89; Williams, 235 S.W.3d at 750. Accordingly, we hold

that the evidence is legally sufficient to support appellant’s conviction for the offense

of burglary of a habitation.

We overrule appellant’s sole issue.