Brian Lefaniel Johnson v. State ( 2011 )

Affirmed and Memorandum Opinion filed July 14, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-10-00931-CR

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Brian Lefaniel Johnson, Appellant

V.

The State of Texas, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1235555

MEMORANDUM OPINION

A jury convicted appellant Brian Lefaniel Johnson of burglary of a habitation and sentenced him to twelve years’ imprisonment.  On appeal, appellant argues that the evidence is insufficient to support his conviction.  We affirm.

I. Background

Appellant and D.M. have three children.  D.M. testified that she and the children lived in an apartment, that appellant would come by “off and on,” but that he did not have a key to the apartment.  On October 3, 2009, appellant, D.M., the children, appellant’s cousin Brandon, D.M.’s cousin Jaleesa, and D.M.’s friend Charles were at the apartment. According to D.M.’s testimony, appellant had initially been invited over, and she let him in the apartment.  Soon, appellant became upset because he felt that there were too many people in the apartment.  Appellant and D.M. began to argue, whereupon appellant left the residence.  D.M. and the others locked the door and put the couch behind it.  D.M. testified that she did not want appellant inside the apartment because she feared continued fighting.  D.M. stated that Brandon called the police.  Brandon’s 911 call was admitted into evidence at trial. 

Appellant returned shortly thereafter.  He began yelling, beating on the door, and trying to kick in the door.  Appellant managed to kick in the door and jumped over the couch.  D.M. was in the living room and the others were in the children’s room.  D.M. testified that when she fell on another couch on her way to the children’s room, appellant started choking her.  Charles intervened and pulled appellant off D.M. while Brandon and Jaleesa tried to keep the children out of the way.  D.M. then ran to the bathroom.

Appellant followed D.M. to the bathroom.  According to D.M.’s testimony, appellant struck D.M. in the face and head and tried to push her head down into the toilet.  D.M. left the bathroom and went out the apartment door to the apartment office where she called the police.  D.M. testified that her door was damaged to the point that she could no longer lock it, and she had a swollen cheek, redness on her face, scratches on her arm, and “could barely swallow.”  D.M. did not seek medical treatment.

B.M. Miller, a deputy with the Harris County Sheriff’s Department, testified that he responded to a call at the apartment address.  He went to the apartment and observed that the front door was damaged and the couch was moved.  He stated that D.M. had some redness on her face and neck, and she was crying and upset.      

Appellant was charged with intentionally entering a habitation owned by D.M., a person having a greater right to possession of the habitation than appellant, without her effective consent and “commit[ting] and attempt[ing] to commit” an assault of D.M.  The jury found appellant guilty and assessed punishment at twelve years in the Texas Department of Criminal Justice—Institutional Division.  This appeal followed.

II.        Analysis

In two issues, appellant challenges the sufficiency of the evidence to support his conviction.  Specifically, appellant contends that there are inconsistencies in D.M.’s testimony, namely, (1) whether she saw Brandon calling the police; and (2) whether appellant actually hit her.  

A majority of the judges of the Texas Court of Criminal Appeals have determined that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”  Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id. at 913–15 (Cochran, J., concurring, joined by Womack, J.) (same conclusion as plurality).  Therefore, in this case we will review the evidence under the Jackson v. Virginia standard. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

Under this standard, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).  The trier of fact “is the sole judge of the credibility of the witnesses and of the strength of the evidence.”  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The trier of fact may choose to believe or disbelieve any portion of the witnesses’ testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  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).

We measure the sufficiency of the evidence against the hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  As applicable in this case, a person commits the offense of burglary if, without the effective consent of the owner, the person enters a habitation and commits or attempts to commit an assault.[1]  Tex. Penal Code Ann. § 30.02(a)(3) (West 2011).  An “owner” is a person who “has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”  Id. § 1.07(35)(A).  “Possession” means “actual care, custody, control, or management.”  Id. § 1.07(39).  An offense is a felony of the second degree if committed in a habitation.  Id. § 30.02(c)(2).  As defined in the jury charge in this case, assault is committed when a person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse” or “intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse.”  Id. § 22.01(a)(1)–(2). 

D.M. testified that she and the children lived in the apartment and that appellant did not have a key.  Although appellant was initially invited over on the date in question, after he left, D.M. and the others locked the door and put the couch behind it.  D.M. testified that she did not want appellant inside the apartment.  D.M. stated that appellant kicked in the door.  The responding officer testified that he observed damage to the door.  D.M. testified that appellant started choking her after he kicked in the door.  According to her testimony, once she and appellant were in the bathroom, appellant struck her in the face and head and was trying to push her head into the toilet.  The responding officer testified that D.M. had some redness on her face and neck, and she was crying and upset.  In Brandon’s 911 call, he stated that the person “trying to kill” his girlfriend just “broke” the door.  He also stated that this person grabbed the woman once inside; he indicated that the two continued to fight in the bathroom.       

Appellant claims that there were inconsistencies in D.M.’s testimony.  The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given testimony.  Fuentes, 991 S.W.2d at 271; Herrero v. State, 124 S.W.3d 827, 833 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  We resolve inconsistencies in testimony in favor of the jury’s verdict in a legal-sufficiency review.  Moreno, 755 S.W.2d at 867; Herrero, 124 S.W.3d at 833.  After reviewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. 

Accordingly, we overrule appellant’s issues. 

III. Conclusion

We affirm the trial court’s judgment.

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Appellant argues that the State failed to prove that he had formed the intent to commit an assault prior to entering the apartment.  Appellant was not charged with burglary of a habitation with intent to commit an assault; rather, appellant was charged with burglary of a habitation and committing and attempting to commit an assault.  Compare Tex. Penal Code Ann. § 30.02(a)(1) (entering a habitation with intent to commit assault) with id. § 30.02(a)(3) (entering a habitation and committing or attempting to commit assault).  Subsection (a)(1) requires proof of intent to commit an assault at the time of entry; subsection (a)(3) does not.  DeVaughn v. State, 749 S.W.2d 62, 64–65 (Tex. Crim. App. 1988) (attempted or completed act in (a)(3) supplants specific intent which accompanies (a)(1)).