FRANCISCO JAVIER PEREZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed March 30, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00539-CR
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FRANCISCO JAVIER PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F08-56298-NY
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OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice Lang
        A jury convicted Francisco Javier Perez of burglary of a habitation with intent to commit a felony other than theft. Pursuant to a plea agreement between appellant and the State during the punishment phase, the trial court assessed punishment at fifteen years' imprisonment. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. 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 Erika Mendoza, the owner, and committed a felony other than theft, namely, aggravated assault, and appellant used or exhibited a deadly weapon, a knife, during the commission of the assault. See Tex. Penal Code Ann. § 30.02(a)(1), (d)(2) (Vernon 2003).
Evidence Presented
 
        Erika Mendoza, the complainant, and appellant have a two-year-old son together. Mendoza testified she and appellant have lived together and broken up several times. At the time of the offense, Mendoza lived in her mother's house, and appellant did not have a key to that residence. On June 3, 2008, appellant called Mendoza about 10:00 a.m. and said he wanted to see his son. According to Mendoza, appellant had visited his son for the first two weeks after the child was born, then came back very sporadically. Mendoza and appellant argued over the telephone. Mendoza said she had things to do that day and appellant should come at another time; appellant said Mendoza was not going to stop him from seeing his son.
        At noon that same day, appellant knocked on Mendoza's front door. Mendoza refused to open the door, telling appellant to leave or she would call the police. Appellant went to the back door, kicked it several times until it opened, then entered the house. Appellant slapped Mendoza while she held their son, telling her that he would see his son whenever he wanted. Mendoza pulled out her cell phone and warned appellant to get out of her house because she was going to call the police. Appellant knocked the phone away, breaking it. Mendoza and appellant continued arguing as she walked into the kitchen. Mendoza testified she repeatedly told appellant to leave her house. Appellant picked up a kitchen knife with a serrated edge and held it at Mendoza's neck, touching the blade against her skin. When Mendoza grabbed the knife, appellant pulled it away, cutting Mendoza's index and middle fingers. Mendoza ran water over her fingers at the kitchen sink while appellant put the knife on the counter and tried to clean blood from his shirt. Appellant did not say anything to Mendoza. After he tried to clean the blood from his shirt, appellant left the house. Mendoza went into another room to use the house telephone to call 911. Mendoza hung up the telephone when appellant came back into the house. When the 911 operator called her back and said to stay on the line, Mendoza told the operator she could not do that because “he was in front of me.” Appellant picked up their son's basketball and threw it at Mendoza as he said, “[N]obody was gonna take his place as a dad.” The ball missed Mendoza's head and crashed into a glass centerpiece on the counter, shattering it. Police officers arrived a short time later and arrested appellant.
        Appellant called two witnesses to testify that he had no blood on his clothing when he was arrested. Sergeant Seftin Burke, a deputy sheriff with the Dallas Sheriff's Office, testified he supervises the inmate vault and property section. The vault is an area of the jail that is responsible for inmate accounts, trust funds, and property. Burke testified that when an accused is booked into the jail, he takes an inventory of all of the accused's property, including money, clothing, and other items. Any inmate can have a person from outside the jail bring clothing to the vault and exchange it for clothing the accused came into the jail wearing. An inmate would have to sign a property exchange form before getting the new clothing. Burke testified appellant was arrested at 2:05 p.m. on June 3, 2008 and booked into the jail at 9:23 a.m. on June 4, 2008. There were no property exchange forms signed by appellant, and the clothing appellant was wearing when he came into the jail was the same clothing in the vault. Gregg McGaughey, the trial court's bailiff, testified appellant came to the court directly from the jail in the clothing he had on: a blue Mavericks shirt and shorts. Appellant did not testify at the trial.
Discussion
 
        Appellant contends the evidence is factually insufficient because Mendoza's testimony was biased, was contradicted by the absence of physical evidence, and was not credible. Appellant asserts that although Mendoza claimed he cut her fingers with a knife and she bled on his shirt, there was no blood on his shirt when he was arrested. The State responds that the evidence is factually sufficient to support the conviction.
        It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury could have reasonably concluded that appellant changed his clothing when he left Mendoza's house prior to his arrest. We resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090539F.U05