Ulyess Hughes v. the State of Texas ( 2021 )

NUMBER 13-20-00139-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ULYESS HUGHES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court
of Wharton County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Longoria
Appellant Ulyess Hughes was indicted for the state jail felony offense of burglary
of a building. See TEX. PENAL CODE ANN. § 30.02(c)(1). The jury found appellant guilty,
and the trial court sentenced him to two years’ incarceration in the Institutional Division of
the Texas Department of Criminal Justice. Appellant argues that there was insufficient
evidence to prove he did not have consent to be in the building. We affirm.
I. BACKGROUND
The indictment alleged that appellant, “on or about January 4th, 2018, did with
intent to commit theft, enter a building or a portion of a building not then open to the public,
without the effective consent of Audry Pierce, the owner thereof.” The indictment also
contained enhancement paragraphs alleging that appellant had previously been
convicted of two state jail felonies.
The building appellant is alleged to have entered is a rental property owned by
Pierce and located at 1410 MLK Boulevard in Wharton. Pierce moved to Missouri several
years before the alleged burglary. Appellant testified at trial that he had known Pierce
since he was a child. After Hurricane Harvey swept the area in August 2017, appellant’s
home was without power, and he testified that Pierce allowed him to use her rental
property’s electricity while he was doing construction work on her property for
compensation before she hired a contractor. Shortly thereafter, Pierce contracted with
Sun Coast Construction, owned and operated by Erick Clarke, to repair the rental
property, and she gave Clarke the only keys to the property to allow him to freely conduct
his work.
Clarke testified that when he took possession of the building in September 2017
to start his work, he discovered an extension cord running from inside Pierce’s property
to appellant’s adjacent residence. Clarke confronted appellant and instructed him to “no
longer come here and steal electricity.” Clarke testified that Pierce was with him when he
first discovered the cord and confronted appellant. Clarke then changed the locks on the
property and secured the windows, except for a broken window in the back, before
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beginning his construction work. Clarke took a break in repairing the property from
December 24, 2017 to January 4, 2018. Upon returning to the property on January 4,
2018, Clarke found one of the windows to the property open and an extension cord
running from inside the property to appellant’s home. Clarke called the police, and Officer
Jason Cadena, a peace officer with the City of Wharton, reported to the scene.
Officer Cadena testified there was an extension cord running from inside Pierce’s
property to the adjoining home, and there were screws on the windows of the rental
property to create “a basic security system.” Officer Cadena further testified to one of the
windows being “slightly canted.” Officer Cadena was aware at the time that the individual
whom he spoke with at the scene, Clarke, was not the owner of the home, but he did not
contact the owner at any point.
After Clarke reported the incident, Detective Jason Barker of the Wharton Police
Department was assigned to the case to investigate. Before obtaining a warrant,
Detective Barker wanted to talk to the owner of the residence, so he called Pierce to
inform her of the situation. Detective Barker testified that Pierce told him on the phone
that “[appellant] previously did [have permission to go inside the house], but since the
contractor was there, he no longer had permission to be in there.” Detective Barker
testified that since he had known appellant for many years, he wanted to hear the full
story before filing for an arrest warrant. Appellant admitted to Detective Barker that he
entered the building to use the electricity on the night of January 3, 2018, at 3 a.m.,
because it was cold and his heater was broken. Additionally, it was appellant’s
understanding that he had permission to use Pierce’s electricity as long as he was not
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interfering with the contractor’s work. After his conversation with appellant, Detective
Barker testified that he spoke to Pierce again to notify her that appellant was the primary
suspect and to determine whether she wanted to press charges. Pierce informed
Detective Barker in a later conversation that she wanted to file charges in this case, and
appellant was arrested. 1
Appellant was found guilty of burglary of a building. The trial court found both
enhancement paragraphs true and sentenced appellant to two years’ incarceration in the
Institutional Division of the Texas Department of Criminal Justice. See id. § 12.425
(providing that, if it is shown on the trial of a state jail felony that the defendant has
previously been finally convicted of two state jail felonies, on conviction the defendant
shall be punished for a felony of the third degree); see also id. § 12.34(a) (stating that the
punishment range for a third degree felony is imprisonment for two to ten years). This
appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his sole issue, appellant argues that there was insufficient evidence to support
his conviction because he had prior consent to enter the building and “the record is devoid
of competent evidence that [Pierce] withdrew consent to enter the building that had been
given to the Appellant prior to alleged offense.”
A. Standard of Review & Applicable Law
In reviewing the sufficiency of the evidence to support a conviction, we consider
the evidence in the light most favorable to the verdict and ask whether any rational fact
1 Pierce did not testify at trial.
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finder could have found every element of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Griffin v. State, 491 S.W.3d 771, 774 (Tex.
Crim. App. 2016); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The
reviewing court is to uphold the verdict unless a rational trier of fact must have had
reasonable doubt as to any essential element. Laster, 275 S.W.3d at 518. It is the fact
finder’s duty to assess the credibility of the witnesses and to draw reasonable inferences
after weighing the evidence, and we defer to the jury’s determinations in that regard.
Jackson, 443 U.S. at 319. The legal-sufficiency standard is deemed to be the only
standard that a reviewing court should apply in a criminal case when determining whether
each element is sufficiently supported by the evidence. Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010).
We measure sufficiency by the elements of the offense as would be detailed by
the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). A hypothetically correct jury charge is “one that accurately sets out the law,
is authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Id. When viewing the record,
both direct and circumstantial evidence are to be treated equally to establish the guilt of
the actor. Jackson, 443 U.S. at 324. Moreover, direct evidence of the offense is not
required, and juries can reasonably infer that circumstantial evidence establishes the guilt
of an actor. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). It is not
necessary that every fact must point to the guilt of the defendant; the evidence can be
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combined to show an actor’s guilt in the offense charged. Johnson v. State, 871 S.W.2d
183, 186 (Tex. Crim. App. 1993). When relying on inferences made by the jury, the
reviewing court must consider “whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the light most
favorable to the verdict.” Hooper, 214 S.W.3d at 17.
As charged in this case, a person commits the offense of burglary of a building if,
without the effective consent of the owner, the person enters a building or any portion of
a building not open to the public, with intent to commit theft. See TEX. PENAL CODE ANN.
§ 30.02(a)(1). Direct evidence of the burglarious entry is not required, and circumstantial
evidence can be used to prove a burglary occurred. See Gilbertson v. State, 563 S.W.2d
606, 608 (Tex. Crim. App. 1978); Reyes v. State, 422 S.W.3d 18, 26 (Tex. App.—Waco
2013, pet. ref’d). Proof of lack of consent can be made by circumstantial evidence as with
any other issue in a criminal case. Hathorn v. State, 848 S.W.2d 101, 107 (Tex. Crim.
App. 1992) (finding circumstantial evidence sufficient to prove lack of consent when the
owner was deceased and therefore unable to testify at trial).
B. Analysis
It is undisputed that appellant entered the property on the night of January 3, 2018,
to take electricity; the sole issue before the Court is whether appellant had Pierce’s
effective consent to do so. Appellant argues that the record is “devoid of competent
evidence” that Pierce withdrew her consent for him to enter the building. While Pierce
was not present at trial to give her testimony as to whether she withdrew consent for
appellant to enter the building, there is circumstantial evidence that she revoked consent.
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Clarke’s testimony that Pierce was with him when he confronted appellant, coupled with
Officer Cadena’s testimony that there were screws securing the windows, circumstantially
supports a finding that appellant was made aware he was not permitted to come into the
property.
Appellant argues that the “only thing bordering on evidence that this [prior] consent
was revoked was Detective Barker’s hearsay account,” but appellant did not object to the
testimony. See TEX. R. EVID. 802 (“Inadmissible hearsay admitted without objection may
not be denied probative value merely because it is hearsay.”); Chambers v. State, 711
S.W.2d 240, 247 (Tex. Crim. App. 1986) (“[I]nadmissible hearsay admitted without
objection [is treated] the same as all other evidence in the sufficiency context, i.e., it is
capable of sustaining a verdict.”). 2 This Court will not question the jury’s decision to
believe Detective Barker’s statements because the jury is the fact finder and they can
choose to believe or disbelieve witness testimony as well as judge the credibility of the
witness. See Jackson, 443 U.S. at 319. Furthermore, the jury could reasonably infer that
appellant knew he was not allowed to enter the building based on appellant’s own
testimony that he understood he was not to enter the building when the contractor was
there. See Hooper, 214 S.W.3d at 17. Therefore, after viewing all the evidence presented
in the light most favorable to the verdict, we hold that a fact finder could have found that
appellant committed burglary of a building without the effective consent of the owner
beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
2 Appellant does not argue that his trial counsel provided ineffective assistance. We note that “[a]
petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance
claims.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc).
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We overrule appellant’s sole issue.
III. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
10th day of June, 2021.
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