Lynn Cornelius Releford v. The State of Texas--Appeal from 278th District Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00419-CR

Lynn Cornelius Releford,

Appellant

v.

The State of Texas,

Appellee

From the 278th District Court

Leon County, Texas

Trial Court No. CM-05-70

MEMORANDUM Opinion

A jury convicted Lynn Cornelius Releford of burglary of a habitation with the underlying felony offense of aggravated assault and sentenced him to ninety-nine years imprisonment. Releford appeals in three issues complaining of the sufficiency of the evidence. We will affirm.

We measure sufficiency of the evidence against the elements of the offense as defined by the hypothetically correct jury charge for the case. Gollihar v. State, 46 S.W.3d 243, 252 (Tex. Crim. App. 1997) (citing Malik v. State, 953 S.W.2d 234, 238 (Tex. Crim. App. 1997)). When reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The court may not re-evaluate the weight and credibility of any evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Inconsistencies in the testimony are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

When reviewing a challenge to the factual sufficiency of the evidence, we ask whether a neutral review of all the evidence demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court does not indulge in inferences or confine its view to evidence favoring one side. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. Id. The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the thirteenth juror to review the fact finder's weighing of the evidence and disagree with the fact finder's determination. Watson, 204 S.W.3d at 416-17 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S. Ct. 2211, 2218, 72 L. Ed. 2d 652 (1982), and Meraz v. State, 785 S.W.2d 146, 156 (Tex. Crim. App. 1990)). If an appellate court concludes that the evidence is factually insufficient, it must clearly state why it has reached that conclusion. Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).

Releford s issues center on whether effective consent to his entrance in the house had been given by anyone present at the time of the assault or by either of the actual owners. Releford was charged with burglary for entering the house where his estranged wife Phyllis had been staying and shooting her. Phyllis and Releford had been separated for more than two months after a previous incidence of domestic violence.

On the morning of the shooting, Releford called to say he was coming by to deliver a Christmas gift. Releford came in the house and stayed for a few minutes without incident. Phyllis and her adult nephew, who also lived at the house, did not object to Releford coming. After a few minutes, Releford said he was going out to his car to get the gift but returned instead with his shot gun and shot Phyllis.

Releford claims that by allowing him into the house, Phyllis and her family approved of his presence, thereby negating the element of entering without consent. See Tex. Pen. Code Ann. 30.02 (Vernon 2003). The State contends that any consent given was not effective. See Tex. Pen. Code Ann. 1.07(a)(19) (Vernon Supp. 2006) ( consent is not effective if (A) induced by force, threat, or fraud. ).

Releford s third issue complains of a fatal variance between the indictment and the proof at trial. In a variance situation, the State has proven guilt of the crime, but in a manner of commission that differs from that described in the indictment. Gollihar, 46 S.W.3d at 246. A claim of variance is an issue of legal sufficiency. Id. The hypothetically correct jury charge, against which the evidence is measured, accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability and adequately describes the particular offense for which the defendant was tried. Id. at 253 (citing Malik, 953 S.W.2d at 240).

Only a material variance between the indictment and proof warrants reversal. Gollihar, 46 S.W.3d at 257. Therefore, the hypothetically correct jury charge includes material variances but excludes immaterial ones. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). In determining if a variance is material, we ask two questions: whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)).

Releford argues the proof offered at trial centered on whether Phyllis consented to his entering the home. However, the indictment alleged that Releford entered without the consent of Anthony Sterns, the actual owner of the house. Sterns is Phyllis s brother-in-law, and he had allowed her to live with him since she left Releford.

While Releford is correct that the State offered testimony regarding whether Phyllis or others had given effective consent to his entering the house, the State also called Sterns himself to the stand. Sterns testified that Releford had not been welcome in the house since Phyllis separated from him. He further testified that he saw Releford the morning of the shooting and had not invited or consented to Releford coming to his house. Sterns admitted that he never expressly stated Releford could not come to the house.

The actual name of the owner is not included in the hypothetically correct jury charge because it is not a statutory element of the offense. Fuller, 73 S.W.2d at 253; see also Tex. Pen. Code Ann. 1.07(a)(22) (defining the elements of an offense as the forbidden conduct; required culpability; required result; and negation of any exception ). Releford makes no argument that he was surprised either by Phyllis s testimony regarding consent or by Stern s testimony. He is in no danger of being prosecuted again for the burglary of the same house. See Gollihar, 46 S.W.3d at 258. The evidence here shows that not only was there not a material variance between indictment and proof, but there was no variance. An immaterial variance is disregarded in a sufficiency review. Id. We overrule Releford s third issue.

Next, Releford complains there is legally and factually insufficient evidence to prove that he entered the house without the effective consent of the owner. Owner is statutorily defined to include any person with a greater right to possession of the property than the actor. Tex. Pen. Code Ann. 1.07(a)(35)(A) (Vernon Supp. 2006). Though the indictment alleged Releford entered without the consent of Sterns, Phyllis, her nephew Wayne Scott, and Sterns s wife Renay lived in the home. Thus, they have a greater right of possession than Releford and could have consented to his entrance in the house. See Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988). There is no burden on the State negate the consent of each party involved, but rather it is incumbent on the defendant to raise the issue of consent defensively. Fletcher v. State, 396 S.W.2d 393, 395-96 (Tex. Crim. App. 1965).[1]

On the morning of the shooting, Releford called and said he was stopping by to bring a gift to Phyllis s granddaughter. Phyllis testified that about five minutes later, he came in the back door without knocking. Releford went into the living room with Phyllis s granddaughter and Scott. Scott told Releford not to touch Phyllis again, and Releford said he had made a mistake promising he would not hit Phyllis again. Releford then told Phyllis he wanted her to live in their mobile home. Phyllis agreed, and Releford said he going to his car to get the gift. He returned and threw two pairs of underwear at Phyllis accusing her of cheating on him. Releford then displayed a shot gun, pointed it at Phyllis, and shot her in the chest.

The Penal Code does not require forced entry to support the charge of burglary. Ellett v. State 607 S.W.2d 545, 549 (Tex. Crim. App. 1980). Also, a marital relationship alone does not authorize a spouse to enter an estranged spouse's residence. Stanley v. State, 631 S.W.2d 751, 753 (Tex. Crim. App. 1982); Gomez v. State, 905 S.W.2d 735, 741 (Tex. App. 1995). The definition of effective consent excludes consent induced by threat, force, or fraud. Tex. Pen. Code Ann. 1.07(a)(19)(A). Under this definition, even one who enters through an open door could do so without effective consent. Ellett, 607 S.W.2d at 550.

Releford relies on a Third Court of Appeals case holding that the State failed to prove lack of consent where the victim invited the defendant in his apartment. Eppinger v. State, 800 S.W.2d 652 (Tex. App. Austin 1990 pet. ref d). However, Eppinger involved no fraud or deception in gaining consent. Id. at 654. Eppinger knocked on the door and the victim told him to enter. The Court specifically noted that consent would have been ineffective if the defendant had knocked on door, asked for a cigarette, and once inside stole money. Id; see also Gordon v. State, 633 S.W.2d 872 (Tex. Crim. App. 1982) (finding that consent was secured by fraud where defendant entered on the pretense of needing to use the phone). In this case, the evidence is sufficient to show that Phyllis s and Scott s consent for Releford to come in the house was ineffective because it was procured by Releford s fraudulent statement that he was there to deliver a Christmas gift. See Gordon, 633 S.W.2d at 875.

Finally, Releford argues that Sterns and Renay each consented to his entrance. Neither was present during the shooting. Renay allowed Releford in the house the day before to get a plate of food. She did not testify at trial. Sterns had a conversation with Releford the morning of the shooting but said he never consented to Releford going in his house.

Consent given to an acquaintance to enter and even stay at a house is not effective consent to enter for all purposes at all times. See Rangel v. State, 179 S.W.3d 64, 69 (Tex. App. San Antonio 2005, pet. ref d). The fact that the previous day, Renay briefly allowed Releford in the house does not bear on whether he had permission to enter on the day of the shooting. See In re D.J.H., 186 S.W.3d 163, 165 (Tex. App. Fort Worth 2006, pet. denied) (conviction for criminal trespass upheld where minor reentered the house after having left for the night). Additionally, Releford attempts to place the burden on the State to negate Renay s consent when neither side called her as a witness. Other than the person named in the indictment as owner, the State was not required to allege or prove want of consent of any other party claimed to have authority to give consent , this being purely a matter of defense. Fletcher, 396 S.W.2d at 395-396.

Releford never argued that he had permission to come and go as he pleased from the Sternses house. In fact, Sterns testified that Releford was not allowed in the house. While Sterns never expressly told Releford he could not come to the house, no magic words are required to negate consent. Prescott v. State, 610 S.W.2d 760, 763 (Tex. Crim. App. 1981).

When viewed in the light most favorable to the verdict, there is legally sufficient evidence to find that Releford did not have effective consent from any party involved. See Saxton, 804 S.W.2d at 914. Further, a neutral review of all the evidence demonstrates neither that the proof of guilt is so weak nor that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414-15. We overrule Releford s claim that the evidence is legally and factually insufficient to show lack of consent. Having overruled each of Releford s issues, we affirm the conviction.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 28, 2007

Do not publish

[CRPM]

[1] Despite having raised the issue of consent with each witness and having moved for a directed verdict on that issue, Releford failed to object to the jury charge which stated that Releford could be found guilty if Anthony Stern did not consent to him being present at the house. Releford does not now argue the jury charge issue on appeal. As previously stated the particular name of the owner of the habitation involved in the burglary is not a statutory element of the offense, and therefore, is not included in the hypothetically correct jury charge against which the sufficiency of the evidence is measured. Our sufficiency review will look at consent as to each person Releford claimed consented to him being in the house.