Opinion
No. 14-07-00252-CR
Opinion filed June 25, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 268th District Court Fort Bend County, Texas, Trial Court Cause No. 43, 547A.
Panel consists of Justices FROST, BROWN, and BOYCE.
MEMORANDUM OPINION
Appellant Kizzy Tennille Williams challenges her conviction of burglary of a habitation. Appellant argues in two issues that the evidence is legally and factually insufficient to support her conviction. In a third issue, appellant asserts that the trial court submitted an allegedly fundamentally erroneous jury-charge instruction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
At one time appellant and complainant Thomas Hicks shared a dating relationship. In December 2004, during their relationship, appellant moved into Hicks's home in Missouri City, Texas. During this time, however, appellant also maintained living quarters elsewhere in the area. Hicks claimed that appellant moved out of his home several months after moving in, but that the two continued to date until around October 2005. The two dispute whether they were living together in Hicks's home at the time of the alleged offense on November 30, 2005. On that date, Officer Larry Brown responded to a call from Hicks involving a disturbance at the home. Although Hicks was not at his home when he called the police, he believed that appellant had entered his home without his permission. Officer Brown arrived at the home and saw appellant leaving the residence. Appellant indicated to Officer Brown that she lived in the residence and that another woman was in the home. Appellant was referring to Deseree McDowell, the mother of Hicks's young child. McDowell and the child had moved into Hicks's home that day. McDowell explained to Officer Brown that Hicks helped her move her belongings into the home earlier in the day and that she was asleep inside the home when she heard the sound of breaking glass. McDowell told Officer Brown that appellant entered the home and threatened her with kitchen knives. Hicks arrived on the scene and explained that he was the homeowner and that appellant did not live at the residence. Officer Brown determined that appellant entered the home by breaking a glass door. Appellant was charged with burglary of a habitation, to which she pleaded "not guilty." During the jury trial that followed, Hicks testified that he was not at home when appellant entered his residence and that he did not give consent for appellant to enter the home. He contacted police because he received a phone call from appellant, who had used McDowell's cell phone to make the call, and believed that appellant was in his home without his permission. Appellant testified that she arrived at the home on the evening of the offense to surprise Hicks with a gift after returning early from vacation. Appellant, who claimed to have possessed a key to the home, asserted that Hicks must have changed the locks to the home because her key did not work. She admitted that she entered the home by breaking the glass when her key failed to work. Once inside, appellant found McDowell sleeping in Hicks's bed. Appellant admitted that she called Hicks from McDowell's cell phone, demanding that he return to the residence immediately. The jury found appellant guilty as charged. The trial court assessed punishment at four years' confinement, probated for six years. Appellant now challenges her conviction, raising three issues for appellate review.II. ISSUES AND ANALYSIS
A. Is the evidence legally and factually sufficient to support appellant's conviction?
In her first two issues, appellant asserts that the evidence is legally and factually insufficient to support her conviction for burglary of a habitation. Specifically, appellant argues that the State failed to prove Hicks had an ownership interest in the property greater than hers and that no evidence was presented by the State to show that she had the intent to commit assault when she entered the residence or that, once inside, she committed an assault. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). 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). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. A reviewing court's evaluation should not intrude upon the fact-finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes, 991 S.W.2d at 271. A person commits the offense of burglary of a habitation when that person enters a habitation without the effective consent of the owner with the intent to commit a felony, theft, or assault, or commits or attempts to commit the same. See TEX. PENAL CODE ANN. § 30.02(a)(1), (3) (Vernon 2003). An "owner" is a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Id. § 1.07(a)(35)(A) (Vernon Supp. 2008). Possession requires actual care, custody, control, or management. Id. § 1.07(a)(39). A person who possesses a greater right to the actual care, custody, control or management of the property than the defendant may be deemed an "owner" of the property. Mack v. State, 928 S.W.2d 219, 222-23 (Tex.App.-Austin 1996, pet. ref'd) (comparing the parties' actual rights to custody and control of the property at the time of the offense to determine a party's greater right to possession). An assault occurs when a person "intentionally or knowingly threatens another with imminent bodily injury" or "intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive." TEX. PENAL CODE ANN. § 22.01(a)(2)-(3) (Vernon Supp. 2008).Evidence of Ownership or Greater Right to Possession of the Habitation
Appellant argues that the State did not prove at trial that Hicks had a greater right of possession to the home than appellant because the State failed to show Hicks was the owner of the property who exercised some degree of care, custody, control, or management over the habitation greater than appellant, as contemplated by section 1.07(a)(35) of the Penal Code. Appellant asserts that the evidence supports a finding that she "owned" the property as the term is statutorily defined. Appellant claims she had just as much right, if not more, to the habitation than Hicks. Appellant points to the following evidence which she contends demonstrates her ownership: (1) her driver's license and mailing address reflected the address of the home in question; (2) she had personal belongings at the residence at the time of the incident; and (3) she helped pay for Hicks's home-related bills and expenses up until and including the month of the incident. Hicks testified at trial that he owned the home and that appellant did not pay for the home or have any ownership rights to the home. Hicks stated that he continues to own the home and that he currently leases it. Hicks testified that appellant had a key to the home at one time but that she returned her key to the home after moving out in early 2005. According to Hicks, he and appellant ended their dating relationship around October 2005, but he would let her in the home whenever she visited him. Hicks confirmed that appellant continued to receive mail at the home even after they had ended their relationship. Other evidence presented at trial demonstrates that appellant received bank statements at an address in Round Rock, Texas, after October 2005. Hicks and appellant agreed that appellant helped pay for home-related expenses and bills; however, the two disputed whether appellant had any belongings in the home. Officer Brown testified that appellant could not readily identify any property belonging to her at the home. Hicks testified that he had not given appellant consent to be in the home on the date in question. Appellant denied moving out of the home. She acknowledged that her name was not on the deed to the home and that she did not receive income from the lease on the home. Appellant claimed to have recited her driver's license number from memory to a responding police officer at the scene. Officer Brown testified that the full offense report created for the case reflects an address in Round Rock associated with appellant's driver's license number. Based on the evidence presented at trial, a jury reasonably could have determined that Hicks was the owner of the property because he maintained a greater degree of custody and control over the residence than appellant. See Harris v. State, 164 S.W.3d 775, 785-86 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (concluding evidence was sufficient to support a determination that another person had a greater right to possession); Mack, 928 S.W.2d at 222-23 (providing that evidence supported an owner's greater right to possess an apartment than the defendant when the defendant moved out, removed his belongings, lived elsewhere, and could not visit unless he received permission even though his name remained on the lease); see also White v. State, No. 01-02-00551-CR, 2003 WL 21101364, at *2-3 (Tex.App.-Houston [1st Dist.] May 15, 2003, no pet.) (mem. op., not designated for publication) (providing that another person had a greater right to possession to an apartment even though the electricity was in the defendant's name and the defendant helped pay apartment bills because the defendant did not possess a key to the apartment and was not listed on the lease). Although appellant presented evidence which she claimed supported her ownership argument, we do not consider whether appellant had any right to possession, but rather focus on whether Hicks's right to possess the property was greater than appellant's right to possess. See Mack, 928 S.W.2d at 223. The evidence in the record amply supports the jury's determination that on the date of the offense, Hicks had a greater right to possession of the home than appellant. See Harris, 164 S.W.3d at 785-86; Mack, 928 S.W.2d at 223.Evidence of Intent to Commit Assault
Appellant also asserts that the State presented no evidence that she entered the habitation with either the intent to commit assault or that, once inside the home, she committed an assault. At trial, McDowell testified that she felt threatened when appellant entered the home, and attempted to leave with her young son because appellant cursed at her and took her cell phone. McDowell testified that appellant blocked their exit while holding two butcher knives. See Harris, 164 S.W.3d at 784-85 (concluding that a complainant's testimony about being threatened, punched, choked, and pushed supports a finding of threat of harm under Penal Code section 22.01(a) for a conviction of burglary of a habitation); Odom v. State, 852 S.W.2d 685, 686-687 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (providing that a complainant's testimony and description of the knife was sufficient to support the jury's finding that the defendant had intent to commit assault even though the knife was never found and the complainant was not injured by the knife). The State offered testimony from Hicks and Officer Brown that after the incident, McDowell appeared shaken and looked visibly upset. See Harris, 164 S.W.3d at 785 (providing that evidence was sufficient when coupled with an officer's testimony that he observed that the complainant was crying hysterically). Given the evidence presented, the record supports the jury's determination that appellant committed or intended to commit an assault against McDowell after entering the home. See id. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of burglary of a habitation beyond a reasonable doubt. See id. at 785, 786; Mack, 928 S.W.2d at 223 (holding the evidence was legally and factually sufficient to support a finding that another individual had a greater right to possession of an apartment than the defendant by comparing the parties' actual rights to custody and control of the property at the time of the offense). Furthermore, when the evidence is viewed in a neutral light, we are unable to find, with some objective basis in the record, that appellant's conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. See generally Harris, 164 S.W.3d at 785, 786. Accordingly, we conclude the evidence is legally and factually sufficient to support appellant's conviction. Appellant's first two issues are overruled.B. Did the trial court submit a fundamentally erroneous jury-charge instruction?
In her third issue, appellant complains of error in the jury charge, arguing that the trial court reversibly erred in submitting an allegedly fundamentally erroneous jury-charge instruction. "A hypothetically correct jury charge has its basis in the indictment allegations." Gollihar v. State, 46 S.W.3d 243, 255 (Tex.Crim.App. 2001). The indictment in this case alleged, in relevant part, that appellant:Paragraph A
intentionally or knowingly enter[ed] a habitation without the effective consent of Thomas Hicks, the owner, and with the intent to commit assault;Paragraph B
intentionally or knowingly enter[ed] a habitation without the effective consent of Thomas Hicks, the owner, and committ[ed] an assault. The jury charge is provided in pertinent part below:Now if you find from the evidence beyond a reasonable doubt that on or about the 30th day of November, 2005, in Fort Bend County Texas, the defendant, Kizzy Tennille Williams, did intentionally or knowingly enter a habitation without the effective consent of Thomas Hicks, the owner, with either intent to commit assault or once therein did commit an assault, then you will find the defendant guilty of burglary of a habitation. Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict Not Guilty."A `variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Id. at 247, 257 (providing that a variance between the wording of a charging instrument and the evidence presented at trial proves fatal only if the variance is material and prejudices an accused's substantial rights). Appellant does not assert error or variance in the indictment. Rather, appellant argues that the record is "devoid of evidence that appellant did not have a greater possessory right to the habitation than Hicks" and that the State presented no evidence that appellant had intent to commit assault or that, once inside the home, she did commit an assault. For these reasons, appellant complains the jury charge was fundamentally erroneous. Although appellant frames this argument as a jury-charge error, in her third issue appellant essentially challenges the sufficiency of the evidence to support the jury charge. A trial court must charge the jury fully and affirmatively on the law applicable to every issue raised by the evidence. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). In analyzing a jury-charge issue, we first determine if an error occurred, and, if so, we conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). The degree of harm necessary for reversal turns on whether appellant preserved error by objection. Id. Because the jury charge in this case set forth the charges alleged in the indictment and because we previously have determined that the evidence is legally and factually sufficient to support appellant's conviction for burglary of a habitation as charged, we conclude that no error existed in the jury charge based on the evidence presented at trial. See TEX. CODE CRIM. PROC. ANN. art. 36.14; Ngo, 175 S.W.3d at 743 (requiring a reviewing court to first determine if an error occurred in the jury charge, and, if so, then conducting a harm analysis); Gollihar, 46 S.W.3d at 255 (providing that a hypothetically correct jury charge is based on an indictment). Having determined that no error exists in the charge, we need not conduct a harm analysis. C.f. Ngo, 175 S.W.3d at 749 (considering harm after finding error in the jury charge). Accordingly, we overrule appellant's third issue. The trial court's judgment is affirmed.