Preston, Terrance Fonte v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed January 18, 2005

Affirmed and Memorandum Opinion filed January 18, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00151-CR

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TERRANCE FONTE PRESTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 968,837

M E M O R A N D U M O P I N I O N

A jury found appellant Terrance Fonte Preston guilty of burglary of a habitation and sentenced him to forty years imprisonment. Appellant brings this appeal, claiming that the evidence was legally and factually insufficient to convict him. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. We affirm.

We utilize the normal standards of review in evaluating legal and factual sufficiency claims. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency);King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000) (legal sufficiency). In order to obtain a conviction for burglary of a habitation in this case, the State was required to prove beyond a reasonable doubt that appellant, without the consent of the owner, entered a habitation or building and committed or attempted to commit a felony, a theft, or an assault. Tex. Pen. Code Ann. 30.02(a)(3) (Vernon 2003). Appellant claims that the evidence is legally and factually insufficient to establish 1) that appellant s victim, Shawndrea Taylor, had a greater right of possession of the premises than did appellant and 2) that an assault had taken place at the time of the alleged offense. We disagree.

Possession of the Premises

Section 1.07 of the Texas Penal Code defines owner as one who has title to the property, possession of the property . . . or a greater right to possession of the property than the actor. Tex. Pen. Code Ann. 1.07(35) (Vernon Supp. 2004). Although appellant and Taylor had at one time lived together in the apartment in which the assault occurred, Taylor s name was the sole name on the lease, i.e., the lease did not list appellant as a tenant. Furthermore, appellant did not have a key to the apartment;[1] had moved his belongings out of the apartment; and did not financially contribute to the apartment s rent payments.

Appellant cites Jingles v. State in support of his contention that Taylor did not have a greater right of possession of the apartment; however, Jingles deals with the lack of consent element of burglary. 752 S.W.2d 126, 128 (Tex. App. Houston [14th Dist.] 1987, pet. ref d). Here, since Taylor locked her door to prevent appellant s entrance, after which appellant kicked Taylor s door down to enter the apartment, no question exists as to whether Taylor gave appellant consent to enter. Because she clearly did not, Jingles is inapplicable.

We do find applicable the two cases cited by the State, Hudson v. State, 799 S.W.2d 314 (Tex. App. Houston [14th Dist.] 1990, pet. ref d) and Mack v. State, 928 S.W.2d 219 (Tex. App. Austin 1996, pet. ref d). In each of these cases, the appellate court held that the appellant had a lesser right of possession of the premises than did the complainant. Hudson, 799 S.W.2d at 316 (complainant had taken appellant s key and appellant had moved out thirty days prior to the commission of the offense); Mack, 928 S.W.2d at 222 23 (appellant had signed the lease as a cotenant but had a lesser right of possession than did complainant since appellant had stopped paying rent and had voluntarily moved out, removed almost all of his possessions from the apartment, and began living with his parents ).

In further support of his argument regarding rights to the premises, appellant cites his mother s testimony that appellant lived at the apartment on the day of the offense, in direct conflict with Taylor s testimony that appellant had moved out. However, since the jury alone possesses the authority to determine the credibility of witnesses and the weight to be given their testimony, these inconsistencies in the testimony do not necessarily render the evidence insufficient. See Santos v. State, 116 S.W.3d 447, 460 (Tex. App. Houston [14th Dist.] 2003, pet. ref d).

Taking into account the above testimony and applicable case law, we find that the evidence is legally and factually insufficient to show that appellant had a lesser right to possession of the premises than did Taylor.

Assault

Appellant claims that the evidence is legally and factually insufficient to establish that there was an assault at the time of the incident. In support, he posits that the evidence offered by Taylor concerning the assault was contradicted by evidence of the responding police officer, Kathryn Richards. The officer testified that Taylor had no visible injuries on her upon Richards s arrival on the scene, but that Taylor appeared very paranoid and very shaken. Richards also testified that the door to the apartment was cracked in half and that Taylor told her that appellant had broken down the door to enter, had grabbed Taylor by the throat, and had thrown her across the room.

The Penal Code states that an assault occurs if a person

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person s spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, includin the person s spouse; or

(3) 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 or provocative.

Tex. Pen. Code Ann. 22.01(a) (Vernon 2003). All of the evidence in the record should be examined to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319; see also Criner v. State, 860 S.W.2d 84, 86 87 (Tex. Crim. App. 1993).

An examination of the evidence shows that the State presented sufficient evidence upon which a jury could have determined beyond a reasonable doubt that appellant assaulted Taylor. Taylor testified that appellant broke the door to her apartment, grabbed her, and threw her against a wall. Testimony by Taylor s friend, Ben Robinson, corroborates her story, as does testimony by Officer Richards. Despite the fact that appellant claims Richards s testimony indicates that Taylor was not injured by the assault, Richards s testimony proves only that visible injuries did not exist at the time immediately following the assault. Richards did testify, however, that Taylor told her that appellant had grabbed her by the throat and thrown her across the room; this alone would be sufficient evidence upon which a jury could have found that an assault had been committed under section 22.01(a)(3) of the Penal Code. The evidence is legally and factually sufficient to establish that an assault took place inside Taylor s apartment on the day of the offense.

Conclusion

Taking into account the above evidence and the fact that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we find that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King, 29 S.W.3d at 562-63; Santos, 116 S.W.3d at 460. That is, viewing the evidence in the light most favorable to the verdict, we find that a rational jury could have determined that appellant entered Taylor s apartment without her consent and assaulted her. The evidence is therefore legally sufficient to support appellant s conviction.

We also find that a neutral review of the evidence does not show that the proof of guilt is so weak that it demonstrates that the verdict is clearly wrong and manifestly unjust; neither is the contrary proof so strong that the reasonable doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. The evidence is therefore factually sufficient to support appellant s conviction.

Appellant s points of error are overruled; we affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed January 18, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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

[1] To enter the apartment on the day of the offense, appellant kicked the door in.