Guadalupe Perez v. State ( 1995 )

Perez TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00695-CR



Guadalupe Perez, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0945005, HONORABLE MIKE LYNCH, JUDGE PRESIDING

Appellant, Guadalupe Perez, waived his right to a jury trial and was tried before a judge who convicted him of burglary of a habitation and sentenced him to fifteen years in prison. On appeal, Perez contends that the evidence was insufficient to prove beyond a reasonable doubt that he entered the habitation without the effective consent of the owner. See Tex. Penal Code Ann. art. 30.02(a) (West 1994). We will affirm the trial court's judgment of conviction.

Perez entered the home of Julia Corter at 2:00 a.m. and, finding her asleep next to Patrick Miller, awoke both Corter and Miller and began assaulting Miller and screaming obscenities at Corter. Perez left Corter's home and returned a few moments later wielding a knife. After a struggle during which Perez stabbed Miller, Miller called the police. In his single point of error, appellant argues that there was insufficient evidence for a factfinder to believe beyond a reasonable doubt that appellant entered Corter's habitation without the effective consent of the owner. In response, the State initially submits that appellant presents nothing for review because the point of error fails to substantially comply with Rule 74 of the Texas Rules of Appellate Procedure. Rule 74 specifically mandates that an argument in a brief supporting a point of error "shall include . . . [a] discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue." Tex. R. App. P. 74(f). In this case, appellant cites no authority other than article 30.02 of the Texas Penal Code. He states conclusively that the evidence was insufficient to prove beyond a reasonable doubt that he entered the habitation without the effective consent of the owner.

We agree with the State that appellant's brief does not acquaint this Court with the "points relied upon . . . together with such argument of facts and law as will enable the court to decide" the issue. See Tex. R. App. P. 74(p). In the interest of justice, however, we review appellant's claim on the merits. Appellant does not clearly state whether his point of error concerns the factual or the legal sufficiency of the evidence. For purposes of this appeal, we will assume that he raised both types of sufficiency claims.

In determining whether the evidence is legally sufficient to support the conviction, we will consider the evidence in light most favorable to the trial court's judgment and, after viewing the evidence, we will determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985); Knabe v. State, 836 S.W.2d 837, 838 (Tex. App.--Fort Worth 1992, pet. ref'd).

Applying this standard of review, there can be no question that the evidence is legally sufficient to support the conviction. Appellant argues that the evidence did not sufficiently establish that appellant entered Corter's duplex without effective consent. The evidence shows that appellant entered Corter's home on two separate occasions. First he broke into the duplex at 2:00 a.m., woke Corter and Miller, and assaulted Miller. He then left the duplex only to return moments later with a knife which he used to stab Miller. Corter testified that she rented the duplex and lawfully possessed it. She further testified that appellant did not have her permission to enter the duplex and that there were signs of forced entry on the front door. Appellant's claim that Corter's son let him into the apartment was not corroborated by any testimony from the son, and the factfinder was entitled to disbelieve appellant's testimony standing on its own. The trier of fact is the sole judge of the weight and the credibility of the witnesses; it can choose to believe or not to believe all of any part of the testimony of the witnesses. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). We believe that a rational factfinder could have concluded beyond a reasonable doubt that appellant entered Corter's home without Corter's effective consent, and we therefore find that the evidence was legally sufficient on this issue.

When conducting a factual-sufficiency review, we view all the evidence equally, including the testimony of defense witnesses and the existence of alternate hypotheses. We do not view the evidence in the light most favorable to the prosecution as in legal-sufficiency review. We should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed); see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). After reviewing all of the testimony, including the testimony already described in this opinion, we hold that the trial court's judgment was not so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust, and we therefore find the evidence factually sufficient. Appellant's single point of error is overruled.

The judgment of the trial court is affirmed.

Bea Ann Smith, Justice

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Affirmed

Filed: December 20, 1995

Do Not Publish

appellant cites no authority other than article 30.02 of the Texas Penal Code. He states conclusively that the evidence was insufficient to prove beyond a reasonable doubt that he entered the habitation without the effective consent of the owner.

We agree with the State that appellant's brief does not acquaint this Court with the "points relied upon . . . together with such argument of facts and law as will enable the court to decide" the issue. See Tex. R. App. P. 74(p). In the interest of justice, however, we review appellant's claim on the merits. Appellant does not clearly state whether his point of error concerns the factual or the legal sufficiency of the evidence. For purposes of this appeal, we will assume that he raised both types of sufficiency claims.

In determining whether the evidence is legally sufficient to support the conviction, we will consider the evidence in light most favorable to the trial court's judgment and, after viewing the evidence, we will determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985); Knabe v. State, 836 S.W.2d 837, 838 (Tex. App.--Fort Worth 1992, pet. ref'd).

Applying this standard of review, there can be no