Kavan Lee Cherry v. State ( 2005 )

Opinion filed November 10, 2005

Opinion filed November 10, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00144-CR

                                                    __________

                                   KAVAN LEE CHERRY, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 238th District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR28992

                                                                   O P I N I O N

The jury convicted Kavan Lee Cherry of two counts of burglary of a habitation.  In the first count, a first degree felony, the jury made an affirmative deadly weapon finding and assessed appellant=s punishment at confinement for eight years. In the second count, a second degree felony, the jury assessed punishment at confinement for six years. We affirm. 

Appellant presents three points of error on appeal.  In his first and second points, appellant challenges the sufficiency of the evidence.  In order to determine if the evidence is legally sufficient, we must review all of 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.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.  Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The jury as the trier of fact is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony.  TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981). 

The record in this case shows that appellant was charged and convicted in Count I with intentionally or knowingly entering a habitation without the consent of Ricky Martinez and therein attempting to commit or committing aggravated assault with a deadly weapon.  In Count II, appellant was convicted of entering a habitation without the consent of Julie Cherry and therein attempting to commit or committing assault. The statutory elements of burglary of a habitation are found in TEX. PEN. CODE ANN. ' 30.02 (Vernon 2003).  Section 30.02(a) provides that the offense of burglary is committed when, without the effective consent of the owner, a person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.  (Emphasis added)

Appellant was indicted and convicted pursuant to Section 30.02(a)(3). 

The record shows that appellant went to his estranged wife=s house to get her to endorse an insurance check for a claim on his pickup.  When appellant arrived at the house, the door was unlocked.  Appellant opened it and walked inside.  Appellant=s wife, Julie Cherry, met him near the door.  Appellant handed her the check to endorse.  Julie took the check but refused to sign it or give it back to him until she found out more about the claim.  Appellant became angry and lunged for the check ultimately pushing Julie over the back of a chair.  Julie=s friend, Ricky Martinez, intervened and told appellant to leave Julie alone.  According to Julie and Martinez, appellant then went toward Martinez as Julie held onto his shirt.  Appellant shoved Julie into a rolling kitchen island, grabbed three knives, and waved them around in Martinez=s direction.  Martinez then called his pit bulldog into the house apparently convincing appellant to leave the premises.

The record shows that appellant and Julie had separated not long before the incident and that appellant was no longer staying at the house.  Julie testified that the house belonged to her because, although monthly mortgage payments were made during the marriage, she had purchased the house while she was single.  Although appellant still came over regularly to visit his daughter and stepdaughter and to occasionally do other things around the house, Julie testified that appellant did not have her consent or permission to enter the house the day of the incident.  Julie testified that she had changed the locks and that she had made it clear to appellant that he was not welcome to just walk into her house whenever he wanted.

Appellant testified that he called first and then went to the house to get Julie=s signature on the insurance check. Appellant opened the door and walked inside.  Julie met him just inside the doorway.  She took the check and proceeded to argue with appellant.  Julie was mad at appellant for calling his stepdaughter=s father.  Appellant grabbed the check, and Julie jumped on him.  Martinez got his dog.  Then, appellant grabbed some knives out of the kitchen drawer to protect himself from Martinez=s dog. Appellant threatened to kill the dog. Appellant denied pinning Julie over the chair and said that nobody told him to leave the house.  Appellant also stated that he still had personal belongings in the house and that he thought he had consent to enter the house, which was still his home address even though he was not staying there at the time.

The jury, as the trier of fact, was free to resolve the conflicts in the testimony, to believe Julie and Martinez, and to disbelieve all or part of appellant=s testimony.  Consequently, we hold that the evidence is both legally and factually sufficient to prove that appellant entered the residence without the effective consent of Julie or Martinez and that, while in the house, he committed or attempted to commit an assault against Julie and an aggravated assault against Martinez.  Appellant specifically argues that the State failed to prove that he had the intent to commit the assaults when he entered the house.  Under Section 30.02(a)(3), no such intent is required at the time of entry. Therefore, appellant was not required to have the intent to commit the assaults at the time that he entered the residence.  Appellant=s first and second points of error are overruled.

In his third point of error, appellant contends that the trial court abused its discretion in denying appellant=s motion for new trial.  We must review the denial of a motion for new trial under an Aabuse of discretion@ standard of review to determine whether the trial court=s decision was arbitrary or unreasonable.  Charles v. State, 146 S.W.3d 204, 208 (Tex.Cr.App.2004); Lewis v. State, 911 S.W.2d 1, 7 (Tex.Cr.App.1995).  We must view the evidence in the light most favorable to the trial court=s ruling, and we may not substitute our judgment for that of the trial court.  Charles v. State, supra; Lewis v. State, supra.  Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling.  Charles v. State, supra. 

The record shows that appellant moved for a new trial based upon documents provided by Julie, who apparently decided to recant some of her testimony at trial after she decided that appellant did not Adeserve[] prison for less than 8 minutes of time in which no one is positive of the events that occurred.@ In a document attached to the motion for new trial, Julie stated that the front door may have been open when appellant entered, that appellant did not cause her any pain, that she fell over the back of the chair, and that appellant was Adefinitely welcome at our home anytime.@  In an affidavit, Julie swore that appellant Aabsolutely did have consent@ to enter the house on the day in question.

Julie testified at the hearing on the motion for new trial and again contradicted herself. In contrast to the written document and affidavit, Julie testified at the hearing that appellant did not have a right to just walk into her house like he did.

We hold that the trial court did not abuse its discretion in denying the motion for new trial. See Keeter v. State, 74 S.W.3d 31, 37-39 (Tex.Cr.App.2002).  Appellant=s third point of error is overruled. 

The judgments of the trial court are affirmed. 

AUSTIN McCLOUD

SENIOR JUSTICE

November 10, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and McCloud, S.J.^[1]

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^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.