Derek Lennear v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-011-CR

DEREK LENNEAR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-129-C

O P I N I O N

A jury found Derek Lennear guilty of the felony offense of burglary of a habitation. Tex. Penal Code Ann. 30.02 (Vernon 1994). The court assessed punishment, enhanced by a prior felony conviction for burglary of a habitation, of thirty-five years' incarceration. By one point of error, Lennear contends there was insufficient evidence to prove that he entered the habitation with the intent to commit theft. Because we find the evidence sufficient, when viewed in the light most favorable to the verdict, we overrule his point and affirm his conviction.

On the night of November 6, 1994, Ms. Willie Johnson arrived home to find Lennear lurking in the shadows of her home. After identifying him, Ms. Johnson asked Lennear to leave. When Lennear complied with her request, Ms. Johnson left her residence. However, upon returning home Ms. Johnson spotted Lennear inside her "daughter's bedroom ransacking. He was looking through stuff." The remainder of the house also showed signs of plundering "[e]verything was ransacked, as far as pillows thrown on the floor, drawers pulled out, clothes everywhere." After Ms. Johnson called the police from a neighbor's house, Lennear fled the residence. Several days later Ms. Johnson noticed a gold necklace and gold bracelet missing from a dresser drawer in her daughter's bedroom.

In reviewing a claim of insufficient evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, 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); Rodriguez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App. 1991). Under Texas law, as charged in the indictment, the essential elements of burglary of a habitation are: (1) a person; (2) without the effective consent of the owner; (3) enters a habitation; and (4) with the intent to commit a theft, or attempts to commit or commits a theft. Tex. Penal Code Ann. 30.02(a); Flores v. State, 906 S.W.2d 133,139 (Tex. App. San Antonio 1995, no pet.); Lopez v. State, 884 S.W.2d 918, 920 (Tex. App. Austin 1994, pet. ref'd). In a prosecution for burglary, the intent to commit theft may be inferred from the circumstances. Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. [Panel Op.] 1982); Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. [Panel Op.] 1979). Furthermore, when reviewing the sufficiency of the evidence, the appellate court may indulge a presumption of intent to commit theft arising from a non-consensual nighttime entry. Browning v. State, 720 S.W.2d 504, 506 (Tex. Crim. App. 1986); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).

At trial, Ms. Johnson stated that she saw Lennear in her residence ransacking her daughter's bedroom and that at no time did she give Lennear permission to enter her residence. Another witness, who accompanied Ms. Johnson that night, also saw Lennear in Ms. Johnson's residence. Further, Ms. Johnson testified that, after Lennear intruded into her residence, a gold necklace and a gold bracelet were missing from the area where she saw Lennear searching. Thus, after viewing the evidence in the light most favorable to the verdict, we believe a rational trier of fact could find that Lennear entered Ms. Johnson's habitation without her effective consent either with the intent to commit a theft or while attempting to commit or committing a theft. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Rodriguez, 819 S.W.2d at 872. Therefore, Lennear's point of error is overruled.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 30, 1996

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