Kerry Lee Beal v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Opinion filed December 9, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01299-CR

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KERRY LEE BEAL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris  County, Texas

Trial Court Cause No. 923,822

O P I N I O N

Appellant, Kerry Lee Beal, was charged by indictment with burglary of a habitation with an intent to commit assault. To this accusation appellant entered a plea of Anot guilty,@ and the parties proceeded to trial before a jury. After hearing the testimony of the witnesses and considering the evidence presented, the jury returned a guilty verdict. Thereafter, the trial court found an enhancement paragraph alleging a prior conviction for aggravated assault to be true and assessed appellant=s punishment at confinement in the state penitentiary for life and a fine of $10,000. We affirm.

In three points of error, appellant contends (1) the evidence is legally insufficient to show he entered the complainant=s habitation, (2) the evidence is factually insufficient to show he entered the complainant=s habitation, and (3) the trial court abused its discretion in denying his motion for a continuance.

Legal Sufficiency

Appellant, a former live-in boyfriend of the complainant, confronted the complainant outside her apartment and demanded the keys to a motor vehicle that they each claim as their own. The complainant refused and ran inside her apartment. She was followed by the appellant who beat the complainant and pulled out clumps of her hair. After he had forcefully obtained the complainant=s purse, she stabbed him in the back with a kitchen knife. Appellant dropped the purse and fled the premises. Police observed a blood trail starting just outside the complainant=s door.

Appellant contends the evidence is legally insufficient to show he ever entered the apartment. When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and 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, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

A person commits burglary if, without the effective consent of the owner, he enters a habitation with an intent to commit an assault, or he enters and commits or attempts to commit an assault. Tex. Pen. Code Ann. ' 30.02(a)(1), (3) (Vernon Supp.2002). Here, two witnesses testified that appellant entered the apartment. One witness called 911 while appellant was fighting with the complainant inside the apartment and so reported on the phone. Although the blood trail starts just outside the complainant=s door, clumps of the complainant=s hair were found throughout the apartment.

Viewing the evidence in the light most favorable to the prosecution, we find a rational jury was entitled to conclude appellant entered complainant=s apartment. Accordingly, the evidence is legally sufficient, and the first point of error is overruled.

Factual Sufficiency

For the same reasons articulated above, appellant also contends the evidence is factually insufficient to support the jury=s verdict. When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies. Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

In making his factual insufficiency argument, appellant continues to argue that there was insufficient evidence to place him inside complainant=s apartment. However, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). We do not find the proof of guilt is so obviously weak as to undermine our confidence in the jury=s verdict or that the proof of guilt is greatly outweighed by contrary proof. Apparently, the jury believed the testimony at trial placing appellant within complainant=s apartment. Accordingly, the second point of error is overruled.

 Failure to Grant a Continuance

In his final point of error, appellant contends the trial court erred in failing to grant a continuance so as to permit more time to secure the presence of three defense witnesses. The general rule is that a motion for continuance must be in writing. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). No such written motion was filed in this case; thus, the issue has not been preserved for appellate review. Mathews v. State, 40 S.W.3d 179, 186 (Tex. App.CTexarkana 2001, pet. ref=d). Even if the issue had been preserved by a written motion, we cannot reverse for a trial court=s failure to grant a continuance unless the record contains some evidence regarding the prejudicial effect of the court=s decision, i.e., the testimony that would have been given by the missing witness. Varela v. State, 561 S.W.2d 186, 191 (Tex. Crim. App. 1978); Hartsonv. State, 59 S.W.3d 780, 784 (Tex. App.CTexarkana 2001, no pet.). Here, appellant filed no motion for new trial to develop the potential testimony of the missing witnesses, and we have no way of ascertaining the prejudicial effect, if any, of the trial court=s denial of a continuance.

Finally, the grant or denial of a motion for continuance is vested in the sound discretion of the trial court. Rodriguez v. State, 21 S.W.3d 562, 565 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). If the record does not indicate a probability that the witness could have been secured by a postponement, or if it appears that a continuance due to the absence of the witness would have delayed the trial indefinitely, there is no error in denying the motion. Varela v. State, 561 S.W.2d 186, 191 (Tex. Crim. App. 1978). Here, the trial court delayed the proceedings to permit the witnesses a more than sufficient amount of time to travel to the courthouse and make an appearance. Despite the trial court=s patience, the witnesses did not appear. Accordingly, the third point of error is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed December 9, 2003.

Panel consists of Justices Hudson, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P.47.2(b).