JAMES LEE MALENA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed September 29, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00161-CR
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JAMES LEE MALENA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F09-57524-RJ
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OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Moseley
        A jury convicted James Lee Malena of burglary of a habitation. During the punishment phase, appellant pleaded true to two prior felony convictions. After finding the enhancement paragraphs true, the trial court assessed punishment at forty years' imprisonment. In a single issue, appellant contends the evidence is factually insufficient to support the verdict. We affirm.
Applicable Law
 
        In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact- finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To obtain a conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly entered a habitation without the effective consent of Sharina Gomez, the owner, with the intent to commit theft, attempted to commit theft, or committed theft. See Tex. Penal Code Ann. § 30.02(a)(1) (West 2003).
Evidence Presented
 
        On or about July 28, 2009, someone broke into Sharina Gomez's house by bending the burglar bars on the kitchen window and going through an unlocked window. The burglar took several items from the home. Gomez told the jury she did not report the break-in because she did not believe the police would do anything. After that break-in, Gomez went to live with her mother in Irving. She asked her boyfriend, Michael Jones, to check on the house daily until she could move her belongings out on the following weekend. Four days later, Jones called her and said he found a man inside the house who had broken out a window. Gomez called the police, then she drove to the house. When Gomez arrived, she saw bags filled with her belongings sitting outside behind the house. Neither she nor Jones had packed up any of her property. An officer as the scene asked Gomez to identify items taken from the suspect, including an expired VISA card, an old bank card with Gomez's picture on it, and two music CDs. Gomez told the officer all of the items belonged to her. Gomez told the jury that she did not know appellant, she never gave him permission to enter her house and take her property, and that because she did not have a key for a top lock on the front door, she never engaged that lock unless she was inside the house.         Jones testified he went to Gomez's house at 9:00 a.m. on August 1, 2009, but could not get in because someone had activated a “top lock” for which he did not have a key. Jones walked around to the back of the house and saw several bags filled with Gomez's property sitting near the house. When Jones saw that a window in the master bedroom had been broken out, he stepped through the broken window and saw appellant in a closet with clothing in his hand “like he was shopping.” Appellant turned around and said, “what are you doing in my motherfucking house.” When Jones told appellant the house belonged to his girlfriend, appellant “charged” Jones. Jones kicked appellant. Appellant fell on the bed. When appellant got up, he had a hammer in his hand. Jones used a bedpost to hit appellant in the head, then he subdued appellant while he called Gomez, who in turn contacted the police. An officer arrived, arrested appellant, and searched appellant's pockets. The officer discovered Gomez's credit cards and CDs in appellant's pockets. Jones testified the weather was “pretty nice” that day, and it had not been raining the night before appellant broke into Gomez's house.
        Dallas police officer Michael Holguin testified he received a “burglary in progress” call. When he arrived at the house, he saw Jones waving at him from the front door. He went inside and saw appellant laying face down on the floor with a head injury. When Holguin asked appellant if he lived there, appellant said no. Appellant did not have any identification. Holguin handcuffed appellant, stood him up, then took him outside the house and called for an ambulance. After another officer arrived at the scene, Holguin talked with Jones inside the house. Jones said the owner of the house asked him to check on it each day. When he could not get the key to open the door, he went around to the side of the house and saw that a window had been broken out. He saw someone inside the bedroom. Jones went through the window and saw appellant with a plastic bag. There were items on the bed also. Appellant attacked him, and Jones defended himself by grabbing a bedpost and swinging it at appellant. Holguin also talked with Gomez, the owner of the house, over the telephone. When Gomez arrived at the house, she said the property stacked on the bed was hers, as was the property inside the plastic bag that appellant had been holding. At that time, Holguin arrested appellant for burglary, then searched his pockets, finding an old identification card and a credit card in Gomez's name, and a few music CDs. Gomez identified the property as hers, and stated she did not give appellant permission to be inside her house or to possess her property.
        During cross-examination, Holguin testified he recalled seeing an old mattress at the back of the house and remembered seeing “stuff” in the backyard that looked like trash to him. Holguin did not recall seeing property bagged and ready to be carted away on the outside of the house. Holguin said an affidavit for arrest warrant was a summary of the incident prepared by an investigator and not the report he had completed. Holguin said he did remember seeing a plastic bag filled with items sitting on the bed alongside some property that was stacked up in the bedroom. Gomez identified the property on the bed and stacked up as belonging to her. Holguin also testified that he generated an offense incident report on August 1, 2009 that stated appellant had a hammer in his hand when Jones entered the house, and there was property from inside the house that was laying outside next to a side door.
        During his testimony, appellant admitted he was inside Gomez's house without permission, but denied he intended to steal her property. Appellant testified that on July 31, 2009, he purchased marijuana and went behind Gomez's house to smoke it. He saw that someone had pried open a window at the back of the house. Appellant went inside the house through the open window sometime between 8:30 p.m. and 10:00 p.m. only because it had begun to rain. Appellant smoked the marijuana and drank beer inside the house, then he sat in the bathtub and fell asleep. The next morning, he heard a noise and looked in the living room. He saw Jones standing there smoking “something on a pipe.” When Jones's cigarette lighter burned out, Jones placed the pipe and the lighter on a table and went out the window. As appellant started to leave, Jones came back inside through the window and said he was the owner of the house. Jones grabbed a bedpost and hit appellant in the head. Appellant denied he had a hammer in his hand at any time, and denied that there were bags filled with property from inside the house sitting outside. Appellant testified that before he entered the house through the already-opened window, he picked up a credit card and two CDs that were laying on the ground below the window and put them in his pocket, believing they were “trash.” Appellant admitted he knew he was not supposed to be inside the house and did not have permission to be there, but he denied that he had any intention of stealing anything from the house. Appellant told the jury he had several prior convictions for burglary of a vehicle, burglary of a building, and theft.
Discussion
 
        Appellant contends the evidence is factually insufficient to prove he had intent to commit theft when he entered the house. Appellant asserts there was no evidence he appropriated the property found in his possession, and there were variances in the witnesses' testimony concerning whether bags of property were outside the house and whether a hammer was used in an altercation. The State responds that the evidence is factually sufficient to show appellant entered the victim's house at night without permission and with intent to commit theft.
        It is well established that the specific intent to commit theft may be inferred from the circumstances. See Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. 1979). Further, it is well settled that unlawful entry at night raises the presumption of intent to commit theft. See Martinez v. State, 469 S.W.2d 185, 186 (Tex. Crim. App. 1971). Here, appellant entered Gomez's house at night without permission. When found inside the house, appellant had property belonging to Gomez in his pockets. Although appellant claimed he picked up the cards and CDs outside the house on the ground, did not see bags filled with Gomez's property sitting outside the house, and did not attack Jones with a hammer, it was the jury's function, as fact finder in this case, to resolve any conflicts in the evidence, and accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury could reasonably conclude that appellant entered Gomez's house without her consent and with the intent to commit theft.
        Having reviewed all of the evidence under the appropriate standard, we conclude it is factually sufficient to support appellant's conviction. We resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100161F.U05