Stevaughn Andre Brown v. State

Affirmed and Memorandum Opinion filed July 8, 2008 Affirmed and Memorandum Opinion filed July 8, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00757-CR ____________ STEVAUGHN ANDRE BROWN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1091701 M E M O R A N D U M   O P I N I O N Appellant, Stevaughn Andre Brown, was indicted on the felony offense of burglary of a habitation. The jury returned a guilty verdict, and the trial court sentenced appellant to seven years= confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant challenges the legal and factual sufficiency of the evidence in support of the verdict. We affirm. Factual and Procedural Background In July/August 2006, Linda Stinson-Adams purchased the house located next door to her own. Both houses are located in a residential community in Spring Branch, on a street that has only residential homes. Immediately after the seller moved out, Stinson-Adams began renovating the house in order to resell it. She completed some of the renovations on her own and hired Victor Rodriguez, a contractor, to convert the garage into living space, remodel the bathrooms, redo the floors, update the appliances, and paint the house. Stinson-Adams testified that the house was a Aprivate habitation@ that was vacant only during this renovation period. However, at the time of the burglary, the renovations were completed and the house was in general working order.[1] The electricity and gas were both on, all the appliances were running, and the air-conditioning was operational. The house did not contain any furniture, but she kept some personal belongings in the house such as paint, tools, fans, and other equipment. Rodriguez also kept his equipment at the house, including two cordless drills, a skill saw, fans, and three briefcases. According to Stinson-Adams, someone could cook dinner at the house and spend the night there comfortably. On October 16, 2006, at around 4:30 or 5:00 p.m., Stinson-Adams noticed a white Ford F-150 pick-up truck parked in the driveway of the house. Believing that neither Rodriguez nor anyone else was supposed to be working at that hour, Stinson-Adams walked next door to investigate. Once there, she observed appellant and two women.[2] Stinson-Adams testified that appellant was standing next to the window of the garageCwhich had been recently converted into living spaceCand was pulling Asomething long and thin@out of the window, an object which she believed may have been a fan or a ladder. She also noticed that the bed of the F-150 contained all of the items that had been inside the house, including Rodriguez=s tools and equipment, and equipment she personally supplied for the renovations. According to Stinson-Adams=s testimony, when she confronted the group, the blonde female informed her that she had Aa note to come get the stuff@ from the house. However, Stinson-Adams testified that she was never shown this note, and neither she nor Rodriguez had given anyone permission to pick up items from the house. Stinson-Adams then told the group that they had no right to the property, and demanded that they remove the items from the truck. At that point, appellant complied, and began placing the items in the driveway. Stinson-Adams then returned to her house and called the police. When they realized she was on the telephone with the police, appellant and the two women jumped into the truck and fled with several items remaining in the back of the truck.[3] However, before the three left the scene, Stinson-Adams was able to recite the license plate number of the F-150 to the police dispatcher.[4] Within minutes, Officer Israel Hernandez of the Houston Police Department arrived at the scene. He testified that when he arrived, he noticed several tools, ladders, and a fan in the driveway. After Stinson-Adams related the details of the burglary to Officer Hernandez, the two inspected the inside of the house. They discovered that it had been emptied of all of its contents. They also observed that someone had attempted to pull out all of the appliances, and that there were footprints left in every room of the house. They further inspected the front and rear doors of the house, and discovered that someone had attempted to force the front door open. Ten days later, Stinson-Adams was shown a photo array from which she identified appellant as the male suspect involved in the burglary. Shortly thereafter, a warrant was issued for appellant=s arrest. Officer Jeffrey Miller of the Houston Police Department later encountered appellant=s white F-150 and pulled him over. After confirming that appellant was the owner of the truck, Officer Miller discovered that appellant had an outstanding warrant for burglary of a habitation and arrested him. Appellant was subsequently indicted on the felony offense of burglary of a habitation. He pleaded not guilty and requested a jury trial. The jury convicted appellant, and the trial court sentenced him to seven years= confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal followed. Issues on Appeal In two issues, appellant challenges the legal and factual sufficiency of the evidence in support of the verdict. First, appellant contends that the evidence is legally insufficient to prove that the premises allegedly entered is a habitation. He argues that the evidence, even when viewed in the light most favorable to the verdict, failed to show that the structure was a habitation because it (1) was not being used as a residence at the time of the offense; (2) lacked furniture, bedding, and other belongings common to a residential structure; and (3) was not adapted to accommodate persons overnight at the time of the alleged offense. Second, appellant argues that the evidence was factually insufficient to prove the intent element of the charged offense. Appellant asserts that his own testimony, if credited, shows that he had an innocent motive and therefore lacked the requisite intent to commit theft. We examine each of appellant=s issues in the order he has presented them. Analysis of Appellant=s Issues I. The Evidence Is Legally Sufficient to Prove That the Premises Entered Is a Habitation. First, appellant contends that the evidence is legally insufficient to prove that the premises allegedly entered is a habitation. He asserts that, at the time of the offense, Stinson-Adams=s house (1) was vacant and therefore not being used as a residence; (2) lacked furniture, bedding, and other belongings common to a residential structure; and (3) not adapted to accommodate persons overnight, although he concedes that it was Aprobably intended@ to accomplish that use. Appellant argues that none of the criteria set forth in Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989), is present in this case, and therefore the structure was not a Ahabitation@ for the purposes of section 30.02 of the Texas Penal Code. Conversely, the State contends that the evidence is legally sufficient to prove that Stinson-Adams=s house is a habitation. The State asserts that, although the house was vacant at the time of the burglary, (1) it was vacant only during a brief period of renovations; (2) it was used as a residence and intended to accommodate people overnight; (3) Stinson-Adams considered it a house and kept her personal belongings there; (4) it was located in a residential neighborhood with only Afamily homes,@ next-door to the owner=s own home; (5) it had a kitchen, living spaces, bedrooms, bathrooms, and a garage; (6) the electricity, gas, and water utilities were on and working; (7) the air-conditioner and all the appliances worked; and (8) someone could cook there and spend the night there comfortably. The State argues that the relevant factors here are more compelling than those in Blankenship, and therefore the evidence is legally sufficient to prove that Stinson-Adams=s house was a habitation. We agree with the State. A. Standard of Review and Applicable Law In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). A person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation or a building[5] with the intent to commit a felony, theft, or an assault. See Tex. Penal Code _ 30.02(a)(1). Burglary of a habitation is a second degree felony, whereas burglary of a building is a state jail felony. See id. _ 30.02(c). The Texas Penal Code defines Ahabitation@ as Aa structure or vehicle that is adapted for the overnight accommodation of persons.@ See id. _ 30.01. The Court of Criminal Appeals has explained that A[w]hat makes a structure >suitable= or >not suitable= for overnight accommodation is a complex, subjective factual question fit for a jury=s determination.@ Blankenship, 780 S.W.2d at 209. Factors that the jury could consider include (1) whether someone was using the structure as a residence at the time of the offense; (2) whether the structure contained bedding, furniture, utilities, or other belongings common to a residential structure; and (3) whether the structure is of such a character that it was probably intended to accommodate persons overnight (e.g., a house, apartment, condominium, sleeping car, mobile home, house trailer). See id. While all the above factors are relevant to guide a jury=s inquiry, none are essential or necessarily dispositive. Id. Furthermore, and more importantly, the determination of whether a burglarized place is a Abuilding@ or a Ahabitation@ will be overturned on appeal only if the appellant can show that no reasonable trier of fact could have found the place to have been a habitation under the criteria above. See id. at 209B10. B. Application of Law to the Facts Viewing the evidence in the light most favorable to the jury=s verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Stinson-Adams=s house is a habitation for the purposes of section 30.02 of the Texas Penal Code. The evidence adduced at trial established that the house (1) was once lived in by its former owner; (2) had been vacant only during a brief period of renovations; (2) has a kitchen, living spaces, bedrooms, and bathrooms; (3) has functioning electricity and gas utilities; (4) has functioning air-conditioning and appliances; (5) is located next-door to Stinson-Adams=s home and within a larger residential community; and (6) was used to store Stinson-Adams=s and Rodriguez=s personal belongings. In addition, Stinson-Adams testified that someone could spend the night at the house comfortably. From these facts, a rational trier of fact could have found that Stinson-Adams=s house is a habitation for the purposes of section 30.02 of the Texas Penal Code. See id. at 210 (finding that vacant house was a habitation where house had once been lived in by complainant, had a living room and two bedrooms, was wired for electricity and had water readily available, had two window air-conditioning units installed, was located 300 yards from the complainant=s own residence, was used to store the complainant=s household items, and complainant testified that the structure was adapted for the overnight accommodation of persons); see also Hicks v. State, 204 S.W.3d 505, 506 (Tex. App.CAmarillo 2006, no pet.) (finding that vacant house was a habitation where owner testified that the house was Ameant to be lived in,@ was wired for electricity, had functioning water and gas utilities, and was in the process of being re-leased); In re E.P., 963 S.W.2d 191, 193 (Tex. App.CAustin 1998, no pet.) (concluding vacant apartment was a habitation where apartment had been occupied about two weeks before the offense, was in the process of being leased, had working water and electricity, had a kitchen, bathroom, and bedroom, and was not situated alone, but rather was located within a larger, active apartment complex). Furthermore, appellant=s contention that A[n]ot one of the criteria set forth in Blankenship is present in his case@ is without merit. To the contrary, the facts here are more compelling than those in Blankenship. There, the Court concluded that the complainant=s rent house was a habitation for the purposes of section 30.02 of the Texas Penal Code, even though (1) the house had been vacant for two years; (2) the power was off and there was no meter; and (3) the water service was turned off in the back yard. See id. at 206. Here, the evidence established that Stinson-Adam=s house was vacant for, at most, three months, and that the electricity, gas, and water utilities were turned on and functional. Thus, the evidence is legally sufficient to prove that Stinson-Adams=s house is a habitation for the purposes of section 30.02 of the Texas Penal Code. We therefore overrule appellant=s first issue. II. The Evidence Is Factually Sufficient to Prove That Appellant Entered Stinson-Adams=s House With the Intent to Commit Theft. Second, appellant contends that the evidence is factually insufficient to prove the intent element of the charged offense. Appellant emphasizes his trial testimonyCnamely that, on the date of the alleged burglary, his friend AMichelle@ asked him to help move some items for a friend of hers, that he accompanied Michelle and another woman named ADonna@ to Stinson-Adams=s house, that Michelle told Stinson-Adams they had permission to remove the items from the house, and that he therefore believed he had permission to take the items from the house. Appellant asserts that this testimony, Aif credited,@ established that he lacked the necessary intent to commit theft. He argues that there was no sufficient justification in the record for the jury to discredit his testimony, and that the evidence in this case is so weak that the verdict is manifestly unjust. In contrast, the State contends that the evidence is factually sufficient to prove appellant entered Stinson-Adams=s house with the intent to commit theft. The State asserts that (1) the house is a Aprivate habitation@; (2) neither Stinson-Adams nor Rodriguez gave appellant or anyone else permission to enter or retrieve property from the house; (3) there was evidence that someone tried to enter through the locked front door; (4) there were footprints in every room of the house, and it was apparent that someone tried to pull out all the appliances; (5) when confronted by Stinson-Adams, appellant was next to a window pulling objects out; (6) appellant=s truck was loaded with property from inside the house; and (7) appellant fled in his truck when he discovered the police were on their way. The State argues that, when viewed in the appropriate light, this evidence is not so weak as to undermine confidence in the jury=s determination. The State further argues that the contrary evidence does not so greatly outweigh the proof supporting the jury=s verdict as to make it manifestly unjust, because appellant=s testimony regarding his belief that he had permission to take the property was Aa self-serving rendition of the events,@ and the jury was entitled to determine that this testimony lacked credibility and thus disregard it. Again, we agree with the State. A. Standard of Review and Applicable Law In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134. We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). While we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that an appellate court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence). Thus, while we are permitted to substitute our judgment for that of the jury when considering credibility and weight determinations, we may do so only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). As noted above, a person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation with the intent to commit a felony, theft, or an assault. See Tex. Penal Code _ 30.02(a)(1). In a prosecution for burglary, 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). Intent may also be inferred from the acts, words, and conduct of the accused. See Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998); McGee v. State, 923 S.W.2d 605, 608 (Tex. App.CHouston [1st Dist.] 1995, no pet.). Intent is a question of fact within the sole purview of the jury. See Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003); Ramirez v. State, 229 S.W.3d 725, 729 (Tex. App.CSan Antonio 2007, no pet.). B. Application of Law to the Facts Viewing the evidence in a neutral light, we find that the evidence is factually sufficient to prove that appellant entered Stinson-Adams=s house with the intent to commit theft. Although appellant testified that he lacked the intent to commit theft because he Anever thought he was acting without permission,@ there was testimonial evidence that (1) appellant did not have permission to enter or remove items from Stinson-Adams=s house; (2) someone tried to enter through the locked front door; (3) there were footsteps in every room of the house, and someone had tried to pull out all the appliances; (4) appellant was standing next to a window and pulling an object out of the window; (5) appellant=s truck was loaded with property from inside the house; and (6) appellant fled when Stinson-Adams called the police. We are mindful that we must exercise appropriate deference to the jury=s credibility determinations, so as to avoid substituting our judgment for that of the jury. See Drichas, 175 S.W.3d at 799; Marshall, 210 S.W.3d at 625. Thus, the jury was entitled to disbelieve appellant=s testimony and believe that appellant entered Stinson-Adams=s house with the intent to commit theft. See McNeil v. State, 631 S.W.2d 240, 241 (Tex. App.CFort Worth 1982, no pet.) (finding jury was justified in finding that defendant intended to commit theft when he was discovered with his hands through the window of an apartment manager=s office, the apartment manager and handyman testified that defendant did not have permission to enter office, and defendant fled from the scene). Therefore, we conclude the evidence that appellant entered Stinson-Adams=s house with the intent to commit theft is not so weak that the verdict is clearly wrong and manifestly unjust. We further conclude that the jury=s verdict was not against the great weight and preponderance of the contrary evidence at trial. Thus, we hold that the evidence is factually sufficient to establish the intent element of the charged offense. Accordingly, we overrule appellant=s second issue. Conclusion Having addressed and overruled each of appellant=s issues, we affirm the trial court=s judgment. /s/ Frank C. Price Senior Justice Judgment rendered and Memorandum Opinion filed July 8, 2008. Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Price.* Do Not Publish C Tex. R. App. P. 47.2(b). * Senior Justice Frank C. Price sitting by assignment. [1] On direct examination, Rodriguez testified that, at the time of the burglary, the renovations were finished and that he was in the process of doing touch-ups on the remodeling work. [2] On cross-examination, Stinson-Adams testified that one of the women was a blonde, Caucasian female, and the other appeared to be African-American. She explained that, during the incident, appellant and the blonde female were standing outside the F-150, while the other female remained inside the truck. On direct examination, appellant testified that he was accompanied to Stinson-Adams=s house by AMichelle Martinez,@ who is Hispanic, ADonna,@ who is Caucasian, and a man named ASteve.@ However, Stinson-Adams did not mention a second male suspect in her testimony. [3] On cross-examination, Stinson-Adams testified that appellant and the blonde female had almost emptied the bed of the F-150 before they fled the scene. She further explained that she could not specifically say what items remained in the back of the truck when the three fled, but suspected that they left with some of the fans that had been stored inside the house. However, on direct examination appellant denied that any items remained in the back of the F-150 when they left the scene. [4] Investigating officers subsequently ran the license plate number reported by Stinson-Adams and matched it to a white Ford F-150 owned by appellant. At that point, appellant=s F-150 was listed as a Avehicle of interest.@ [5] The Texas Penal Code defines Abuilding@ as Aany enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.@ See Tex. Penal Code _ 30.01(2). The offense of burglary requires that the building entered Anot [be] then open to the public.@ See id. _ 30.02(a)(1).