Cornelius Hunt, Jr. v. State ( 2002 )

                                   NUMBER 13-01-243-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

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CORNELIUS HUNT, JR.,                                                        Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

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                       On appeal from the Criminal District Court

                                of Jefferson County, Texas.

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                                   O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                                Opinion by Justice Rodriguez

Appellant, Cornelius Hunt, Jr., entered a plea of not guilty to the offense of burglary of a habitation. See Tex. Pen. Code Ann. ' 30.02(a)(1) (Vernon Supp. 2002). A jury found him guilty, and Hunt entered pleas of true to the allegations in three enhancement paragraphs. The trial court sentenced Hunt to thirty years in the Institutional Division of the Texas Department of Criminal Justice.  By three issues, Hunt claims the evidence was insufficient to show the structure burglarized was a habitation, and the trial court erred in denying his request for a charge on the lesser included offense of burglary of a building.  We affirm.

I.  Sufficiency of the Evidence

In issues two and three, Hunt challenges the legal and factually sufficiency of the evidence to establish he burglarized a habitation.

A.  Standard of Review

When reviewing the legal sufficiency of the evidence, the court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995)). For a factual sufficiency challenge, we conduct a neutral review of all evidence, and set aside the verdict only if (1) it is so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding is against the great weight and preponderance of the available evidence.  Id. at 11. 

We must, however, always remain cognizant of the fact finder's role and unique position, and give appropriate deference to the judgment of the fact finder so as not to supplant the fact finder=s function as the exclusive judge of the weight and credibility given to witness. Id. at 7, 9. 

The authority granted in Clewis to disagree with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Otherwise, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. 

Id. at 9; see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (court authorized to disagree with jury=s determination, even if probative evidence exists which supports verdict).

B.  The Law

AThe determination whether a burglarized place is a >building= or >habitation= 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.@  Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989).  A Abuilding@ means Aany enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.@  Tex. Pen. Code Ann. ' 30.01(2) (Vernon 1994).  AHabitation@ is defined as Aa structure or vehicle that is adapted for the overnight accommodation of persons.@   Id. at ' 30.01(1).  The Texas Court of Criminal Appeals set out the following test to be used in determining whether a structure is a habitation:

What makes a structure Asuitable@ or Anot suitable@ for overnight accommodation is a complex, subjective factual question fit for a jury=s determination.  Their inquiry could be guided by whether someone was using the structure or vehicle as a residence at the time of the offense; whether the structure or vehicle contained bedding, furniture, utilities, or other belongings common to a residential structure; and whether the structure is of such a character that it was probably intended to accommodate persons overnight (e.g. house, apartment, condominium, sleeping car, mobile home, house trailer).  All of these factors are relevant; none are essential or necessarily dispositive.

Blankenship, 780 S.W.2d at 209.

C.  The Facts

The home owner, Gary Tyler, testified he lived at 2755 Rockwell, Beaumont, Texas, for fourteen years. His home was damaged by fire in the fall of 2000.  Because of the fire and resulting smoke damage, Tyler was staying at his sister=s apartment until the repairs were completed.  He had been there for a month or two when the burglary occurred.  Tyler indicated he had taken steps to make sure his home was secured, but the intruders had torn through the plywood.  Tyler testified there was bedroom and living room furniture in his home.  He also identified jewelry, kitchen items and even knickknacks that were in his home at the time of the burglary.  The house was in general working order; the plumbing was intact, the gas was on, the house was wired for electricity although it had been turned off, and the water was readily available by turning it on from the outside.  Tyler testified he was at the residence every evening to ensure that it remained secure.

Roy Cole, a neighbor to the burglarized home, testified that people had been living in the residence, but had begun removing items from the house in order to make repairs.  The damaged portion of the home had been boarded up to keep it secure.

Lance Tiner, a police officer with the Beaumont Police Department who responded to a call regarding suspicious activity behavior at the Tyler home, testified the house had suffered fire damage.  The room at the southeast corner, where Hunt was found hiding in the closet, was almost completely vacant, and looked like it had considerable smoke or fire damage.  The rest of the house was furnished, yet slightly cluttered.  Items of property were stacked throughout the house, in rooms not damaged by the fire.^[1]  Nothing was boxed up to indicate anyone was in the process of moving from the residence.

Patrolman Darrell Lebeouf, who was on patrol with Officer Tiner that evening, testified a fire had completely gutted the room that had its windows boarded.  The rest of the house had smoke damage.  However, the furniture was still in the house, and the Tylers planned to move back as soon as the insurance adjuster completed his work. The family had left their belongings in the house and went there daily to clean up.  They had never moved out, but were not sleeping in the house because of the damage.

Finally, Hunt testified he never saw anyone at the house when he passed by.  He thought it was abandoned.  Hunt also testified he entered the house to sleep, and laid down on a bed in the front bedroom.

D.  Analysis

Guided by the test set out in Blankenship, we conclude the facts in this case are sufficient to establish the home was a Ahabitation.@  Although the house was unoccupied at the time of the burglary, it had been occupied by the Tyler family for fourteen years.  It was wired for electricity and had water available.  Bedroom and living room furniture and kitchen items were inside the house and available for use.  Even Hunt, in his defense, testified he entered the house to sleep, and went into a bedroom and laid down on one of the beds.  Viewing the facts in the light most favorable to the verdict, a rational trier of fact could have found the house was a habitation.  See Johnson, 23 S.W.3d at 7.  Furthermore, after conducting a neutral review of the evidence, we conclude the verdict is not so weak as to be clearly wrong and manifestly unjust. Neither is the adverse finding against the great weight and preponderance of the available evidence. See id.  We, therefore, conclude the evidence is legally and factually sufficient to establish Hunt burglarized a habitation.  Hunt=s second and third issues are overruled.

II. Lesser Included Offense

By his first issue, Hunt contends the trial court erred in denying him an instruction on the lesser included offense of burglary of a building. 

A.  The Law

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).  A charge on a lesser included offense is required if (1) the lesser included offense must be included in the proof necessary to establish the offense charged, and (2) there is some evidence that if the defendant is guilty he is guilty only of the lesser included offense.  Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981); Sanders v. State, 963 S.W.2d 184, 187 (Tex. App.BCorpus Christi 1998, pet. ref=d); see Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).  This test, first set out in Royster, 622 S.W.2d at 444, and later modified by Aguilar, 682 S.W.2d at 558, is known as the Royster test.

B.  First Prong of Royster

The first prong of the Royster test, in this case, has been met because it has been established that burglary of a building is a lesser included offense of burglary of a habitation.  Allison v. State, 618 S.W.2d 763, 764 (Tex. Crim. App. 1981); Bartley v. State, 789 S.W.2d 288, 291-92 (Tex. App.BDallas 1990, pet. ref=d) (citations omitted).  However, a jury charge on the lesser offense is not always warranted merely because the lesser included offense must be included in the proof necessary to establish the offense charged.  Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992); Moreno v. State, 702 S.w.2d 636, 640 (Tex. Crim. App. 1986); Aguilar, 682 S.W.2d at 558.

C.  Second Prong of Royster

To satisfy the second prong of the Royster test, Asome evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.@  Rousseau, 855 S.W.2d at 672-73.  AIn applying the two-prong test, the trial court should make a determination as to whether the evidence of the lesser offense would be sufficient for a jury rationally to find that the defendant is guilty only of that offense, and not the greater offense.@  Id. All evidence presented by the State and the defendant must be considered.  Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995); Havard v. State, 800 S.W.2d 195, 210 (Tex. Crim. App. 1989) (op. on reh=g).  If evidence from any source affirmatively raises the issue of a lesser included offense, a defendant is entitled to an instruction thereon.  Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).  It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense.  Id. Instead, Athere must be some evidence directly germane to a lesser . . . offense for the fact finder to consider before an instruction . . . is warranted.@  Id. Entitlement to a jury instruction on a lesser included offense must be determined according to the particular facts of each case.  Livingston v. State, 739 S.W.2d 311, 336 (Tex. Crim. App. 1987); Ybarra v. State, 890 S.W.2d 98, 108 (Tex. App.BSan Antonio 1994, pet. ref=d).

Considering all evidence presented by the State and defendant, we conclude Hunt has failed to show some evidence in the record from which a jury could rationally find that the structure was a building, not a habitation.  See Rousseau, 855 S.W.2d at 672-73. Testimony that there was a fire at the home and Hunt thought the home was abandoned, without more, is not enough.  Mere speculation or surmise does not meet the test of the second prong of the Royster test.  See Hall v. State, 682 S.W.2d 608, 609 (Tex. App.BBeaumont 1984, no pet.).  Moreover, Hunt also testified he entered the rear of the house to sleep. He went into a bedroom in the front of the house and laid down on one of the beds.  There is no evidence to show the appellant would be guilty of only the lesser included offense.  The trial court did not err in refusing appellant=s requested instruction.  Accordingly, Hunt=s first issue is overruled.

The judgment of the trial court is affirmed.                                                            

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 18th day of April, 2002.

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^[1]Tyler later testified he had not stacked these items.