Vernon Adrian Thomas v. The State of Texas Appeal from 219th District Court of Collin County (opinion )

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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § VERNON ADRIAN THOMAS, No. 08-15-00236-CR § APPELLANT, Appeal from the § V. 219th District Court § THE STATE OF TEXAS, of Collin County, Texas § APPELLEE. (TC# 219-82183-2014) § OPINION Vernon Adrian Thomas appeals his conviction of burglary of a habitation, enhanced by a prior felony conviction. After finding Appellant guilty, a jury found the enhancement paragraph true and assessed Appellant’s punishment at imprisonment for a term of twelve years. We affirm. FACTUAL SUMMARY Cheryl Washom and her sixteen-year-old daughter, Montrelle, live in Plano, Texas. On August 1, 2014, Cheryl, Montrelle, and Montrelle’s boyfriend, Josh Mitchell, left the house sometime in the afternoon to visit Cheryl’s sister. Cheryl locked the doors to the home before they left, and she generally kept her windows locked. When they returned home at around 11:00 p.m., Cheryl noticed that the back door to her home was open. This caused Cheryl to be concerned and she went into the kitchen and laundry area to check on the back door. In the meantime, Montrelle went into her mother’s bathroom. Even though it was dark in the bathroom, Montrelle saw a man’s shadow reflected in the bathroom mirror. Using a curtain rod to reach into the bathroom, Montrelle turned on the light, and saw Appellant zipping his pants and making a gesture for her to be quiet. Montrelle also saw that Appellant had a scarf and shirt in his pockets. Appellant tried to grab Montrelle, but she ran out of the bathroom and told her mother that a man was in there. Cheryl armed herself with the curtain rod and went to her bedroom where she saw Appellant standing by her bed. Cheryl asked Appellant why he was in their home, and he stated, “it’s not what you think.” When Appellant tried to grab Chery’s arms, she began hitting him with the curtain rod, and she told Montrelle and Josh to call the police. Appellant attempted to leave and pushed Cheryl, but Josh jumped on his back. Appellant managed to push them into the living room, but together they held him until the police arrived. Several Plano police officers, including Officer Jonathon Theis, responded to the burglary call. Theis parked his patrol car down the street for his own safety and exited his vehicle. He heard screaming and ran to the house where a woman waved him inside. He immediately saw what he described as “an obvious disturbance.” A man, later identified as Appellant, was standing on one side, and another man and woman were standing on the other side, and they were screaming at each other. Appellant looked at Theis with apparent relief on his face and threw himself onto the floor. Theis handcuffed him and found a screwdriver in Appellant’s pocket. Additionally, Appellant had baby oil and condoms in his pockets, and he had stuffed a silky scarf and tube top inside the front of his boxer shorts. When asked whether the clothing was soiled or wet, Theis responded that the clothing was “slightly soiled.” At trial, Cheryl identified the scarf as belonging to her, and said it had been in a drawer in her bedroom. The tube top belonged to her oldest daughter and it had been in a different bedroom. -2- The police officers removed Appellant from the house and put him in a patrol car for his own safety and to calm down the scene. Appellant told Officer Josh Thomason that he had been drinking and smoking “ice,” and he used the screwdriver to pry open a window.1 Cheryl discovered that the lock on one of her windows had been broken. It was not broken when Cheryl left the house to visit family on August 1, 2014. SUFFICIENCY OF THE EVIDENCE In Issue One, Appellant challenges the sufficiency of the evidence supporting his conviction. More specifically, he alleges that the evidence is insufficient to prove beyond a reasonable doubt that he entered the habitation with intent to commit theft. Appellant further argues that the evidence “clearly establishes that Appellant’s purpose in entering the house was not to commit theft but to masturbate.” Appellant did not testify at trial or offer evidence that he entered the home with this specific intent. Standard of Review In reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Murray v. State, 457 S.W.3d 446, 448 (Tex.Crim.App.), cert. denied, ––– U.S. ––––, 136 S.Ct. 198, 193 L.Ed.2d 127 (2015). This standard recognizes that it is the factfinder’s responsibility to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; see Murray, 457 S.W.3d at 448. Thus, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App. 2012). Our task is to 1 “Ice” is slang for methamphetamine. -3- determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. The standard of review is the same for direct and circumstantial evidence cases, and circumstantial evidence is as probative as direct evidence in establishing guilt. Acosta v. State, 429 S.W.3d 621, 625 (Tex.Crim.App. 2014). Circumstantial evidence alone may be sufficient to support a conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Burglary of a Habitation A person commits the offense of burglary of a habitation if, without the effective consent of the owner, enters a habitation with intent to commit a theft. TEX.PENAL CODE ANN. § 30.02(a)(1)(West 2011). A jury may infer intent from circumstantial evidence such as a defendant’s acts, words, and conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004). The specific intent to commit theft can be inferred from a defendant’s conduct and the surrounding circumstances. See Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App. 1993); Lewis v. State, 715 S.W.2d 655, 657 (Tex.Crim.App. 1986). When reviewing the sufficiency of the evidence regarding intent to commit theft, the law permits the appellate court to measure the sufficiency of the evidence on this issue by use of a presumption or permissive inference that a nonconsensual nighttime entry of a habitation or building is with the intent to commit theft. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985); Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Crim.App. 1982). Wilkerson v. State, 927 S.W.2d 112, 115 (Tex.App.--Houston [1st Dist.] 1996, no pet.). Viewed in the light most favorable to the verdict, the evidence showed that Appellant, without the owner’s consent, entered the home late at night by using a screwdriver to break a window lock, and he went into at least two bedrooms in the home. Appellant removed articles of -4- women’s clothing from the bedrooms, and he hid the clothing in his underwear. The evidence also supports an inference that Appellant would have fled from the home with the stolen clothing if the homeowner and family members had not forcibly held him until police arrived. While the evidence may also permit an inference that Appellant had a prurient interest in these articles of clothing, the existence of that interest does not preclude the jury from finding that Appellant entered the home with the intent to commit theft. In other words, the jury’s conclusion that Appellant entered the home with the intent to commit theft is rational. Issue One is overruled. LESSER-INCLUDED OFFENSE In Issue Two, Appellant contends that the trial court erred by not charging the jury on the lesser-included offense of criminal trespass. Article 37.09 of the Code of Criminal Procedure provides that an offense is a lesser-included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” TEX.CODE CRIM.PROC.ANN. art. 37.09(1)(West 2006). The determination of whether a lesser-includedoffense instruction requested by a defendant must be given requires a two-step analysis: (1) Is the requested charge for a lesser-included offense of the charged offense?; (2) Is there trial evidence that supports giving the instruction to the jury? Rice v. State, 333 S.W.3d 140, 144 (Tex.Crim.App. 2011). The first step of the analysis is a question of law that does not depend on the evidence presented at trial. State v. Meru, 414 S.W.3d 159, 162 (Tex.Crim.App. 2013). This step requires a comparison of the elements of the offense as alleged in the indictment with the elements of the requested lesser offense. Id. An offense is a lesser-included offense where “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” State v. Meru, 414 S.W.3d at 162, quoting TEX.CODE CRIM.PROC.ANN. art. 37.09(1). We use the cognate-pleadings approach to determine whether an offense qualifies -5- as a lesser-included offense under Article 37.09(1). State v. Meru, 414 S.W.3d at 162. In State v. Meru, the Court of Criminal Appeals held that criminal trespass is generally not a lesser-included offense of burglary of a habitation because each offense has a different statutory definition of “enter.” State v. Meru, 414 S.W.3d at 163-64. The burglary statute defines “enter” as meaning to intrude any part of the body. TEX.PENAL CODE ANN. § 30.02(b). Thus, a burglary is complete upon only a partial intrusion onto the property. State v. Meru, 414 S.W.3d at 163. The criminal trespass statute defines “enter” as an intrusion of the entire body. TEX.PENAL CODE ANN. § 30.05(b)(1)(West Supp. 2016). Thus, an intrusion of the entire body is required to support a criminal trespass conviction, and a partial entry onto the property by the defendant is insufficient for a conviction of criminal trespass. State v. Meru, 414 S.W.3d at 163. In other words, the lesser offense requires proof of greater intrusion than burglary. Id. Consequently, the Court of Criminal Appeals concluded that the different definitions of “enter” will generally prohibit criminal trespass from being a lesser-included offense of burglary. State v. Meru, 414 S.W.3d at 163-64. The Court held that under the cognate-pleadings approach, criminal trespass will qualify as a lesser-included offense only if the indictment alleges facts that include the full-body entry into the habitation by the defendant. Id. at 164. The indictment in this case does not allege such additional facts. Consequently, criminal trespass is not a lesser-included offense of burglary of a habitation. See State v. Meru, 414 S.W.3d at 164. It is unnecessary to proceed to the second step and examine the evidence presented at trial to determine whether a jury could have found Appellant guilty only of criminal trespass. Issue Two is overruled. Having overruled both issues, we affirm the judgment of the trial court. -6- February 2, 2017 YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., Not Participating (Do Not Publish) -7-

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