Eseosa Omoruyi Obadagbonyi v. State

Affirmed and Memorandum Opinion filed October 28, 2008 Affirmed and Memorandum Opinion filed October 28, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00495-CR ____________ ESEOSA OMORUYI OBADAGBONYI, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Cause No. 1428084 M E M O R A N D U M   O P I N I O N Appellant, Eseosa Obadagbonyi, was charged with criminal trespass and assault. Appellant entered a plea of Anot guilty@ to both offenses. After considering the evidence, the jury found appellant guilty of criminal trespass, but not guilty of assault. The jury assessed appellant=s punishment at confinement for 150 days in the Harris County Jail, probated for 18 months, and a $750.00 fine. On appeal, appellant claims the evidence at trial is legally and factually insufficient to show he entered the residence. We affirm. BACKGROUND On July 24, 2006, Officer Jocelyn Harris of the University of Houston Police Department was dispatched to an apartment on campus in response to a call reporting an attempted burglary. She noticed the door frame had been severely damaged, indicating forced entry. According to complainant, appellant kicked in the door, entered the apartment, and slapped her face. Appellant was charged with, and convicted of, criminal trespass to a habitation. ANALYSIS To support a conviction, the State must prove that (1) the defendant, (2) without effective consent, (3) entered or remained in the habitation of another, (4) knowingly or intentionally or recklessly, (5) when he had notice that entry was forbidden or received notice to depart but failed to do so. Tex. Penal Code Ann. ' 30.05 (Vernon Supp. 2008); see also Langston v. State, 812 S.W.2d 406, 408 (Tex. App.CHouston [14th Dist.] 1991), aff=d, 855 S.W.2d 718 (Tex. Crim. App. 1993). Appellant challenges the legal and factual sufficiency of the evidence of the third element, that is, appellant=s entry into the habitation. A. Legal Sufficiency Standard of Review In assessing the legal sufficiency of the evidence, we consider 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 offense beyond a reasonable doubt. Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). AThe Jackson standard of review gives full play to the jury's responsibility fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence.@ Id. (quoting Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001) (internal quotation marks omitted)). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). B. Factual Sufficiency Standard of Review In conducting a factual sufficiency review, we view the evidence in a neutral light and will set aside the verdict only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 407B08 (Tex. Crim. App. 1997). A clearly wrong and unjust verdict occurs where the finding is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@ Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Thus, we do not engage in a second evaluation of the weight and credibility of the evidence, but ensure only that the trier of fact reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). There are two ways in which the evidence may be insufficient. Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref'd). First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting, and contrary to, the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met such that the guilty verdict cannot stand. Id. If there is evidence that establishes guilt beyond a reasonable doubt which the trier of fact believes, the judgment cannot be reversed on sufficiency of the evidence grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). Our analysis considers the evidence cited by appellant as most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). C. Application to Facts Appellant contends a rational jury could not have reached the determination that appellant entered the residence based on the evidence presented at trial. Complainant testified appellant kicked in the door to her apartment and entered without her consent. No one else testified appellant entered the apartment because complainant was alone in her apartment when he entered. Appellant used the tape recording of complainant=s call to campus police, an e-mail, and a note written by complainant to discredit complainant=s testimony before the jury. Officer Harris was dispatched to an Aattempted burglary@ at complainant=s home following complainant=s call to campus police. The tape of the call was played for the jury at trial. During complainant=s telephone conversation with campus police, complainant stated that someone had been banging on her door and that she feared that person would return. Complainant testified she called campus police after appellant entered the apartment, remained for a short time, and then left the premises. Appellant claims that the discrepancy between complainant=s description during the recorded conversation and complainant=s trial testimony indicates appellant had not entered the apartment when the call was placed. Appellant introduced the tape to discredit complainant and show that appellant did not enter the residence. Appellant also questioned complainant at trial about an e-mail and a handwritten note she had given to appellant apologizing for lying to him during their relationship. Initially, complainant denied the existence of these documents. After they were admitted into evidence, appellant used them to show complainant is not always truthful. Appellant argues a rational jury could not have found he entered the apartment given the officer was dispatched to an Aattempted burglary@ and the alleged lack of credibility of the complainant. Appellant also argues the tape recording of complainant=s call to the police and her written admissions of dishonesty during her relationship with appellant make up the evidence that most undermines the jury=s verdict. Finally, appellant contends this evidence coupled with the alleged bias exhibited by the State=s other testifying witnesses shows the great weight of the evidence contradicts the jury=s verdict. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The jury may choose to believe some testimony and disbelieve other testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Appellant took advantage of the opportunity to challenge the State=s witnesses= perception of the facts and to expose any possible bias in their motivation for testifying during cross-examination. We presume the jury considered all of the evidence presented by the defense attacking complainant=s credibility and the State=s other witnesses when it relied on that testimony to convict appellant. The demonstration of potential bias and dishonesty on the part of some of the State=s witnesses does not amount to contradiction of the verdict by the great weight of the evidence. CONCLUSION We hold a reasonable jury could conclude from the evidence presented here that appellant entered the premises. We also find the jury=s verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, the evidence is legally and factually sufficient to support the conviction. Appellant=s first and second points of error are overruled, and the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Senior Justice Judgment rendered and Memorandum Opinion issued October 28, 2008. Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.* Do Not Publish C Tex. R. App. P. 47.2(b). * Senior Justice J. Harvey Hudson sitting by assignment.