Moses, Patrick M. v. State

AFFIRM; Opinion Filed May 17, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01122-CR
PATRICK MARQUIS MOSES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F11-62662-K
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Myers and Evans
Opinion by Chief Justice Wright
A jury convicted Patrick Marquis Moses of burglary of a habitation. The trial court
assessed punishment, enhanced by two prior felony convictions, at thirty years’ imprisonment.
In a single point of error, appellant contends the evidence is insufficient to support the finding
that he entered the habitation with the intent to commit theft. We affirm the trial court’s
judgment.
EVIDENCE PRESENTED
Jennifer Hernandez, the complainant, testified she lived in the “center portion” of a
duplex with her aunt and two young cousins. Another family lived in the other half of the duplex
and a man lived in the garage. 1 The entrance to her house was a sliding glass door that required
a person to lift it slightly when opening or it would scrape the bottom and make noise. The other
family entered their half of the duplex through a door on their side of the house. Hernandez
testified that at about 11:50 a.m. on December 5, 2011, she was in her bedroom getting ready to
take a shower when she heard the glass door being opened. She walked from her bedroom to the
living room doorway, thinking her aunt may have returned from work early. She saw appellant
standing in the living room. Appellant was wearing a white jacket, blue pants, and a hood over
his head, and he was holding a pipe in his hand. Hernandez testified appellant looked surprised
when he saw her. Appellant raised the pipe and said, “Hey, what’s up?” Hernandez testified she
felt “scared” and threatened. When appellant took a step forward, Hernandez ran to the kitchen
and grabbed a large knife. She turned back toward the living room and saw the curtains moving.
She went outside and saw appellant running down the street and turning the corner. Hernandez
went back into her house and called 911. Hernandez testified she did not know appellant, and
she never gave him consent to enter her house. The 911 audiotape was played to the jury.
Dallas police officer Carlos Cardenas testified he heard the dispatcher’s report of a
robbery home invasion and the description of the suspect. Cardenas, who was in plain clothes at
the time, was three blocks away from Hernandez’s house. As he neared that location, he saw
appellant walking about seventy-five yards from Hernandez’s house. Cardenas radioed
appellant’s location to other officers while he followed appellant to the Tyler/Vernon train
station, which is located two blocks from Hernandez’s house. When appellant saw patrol cars
approaching, he crawled under a bus. Cardenas notified the officers about where appellant was
hiding, and the officers apprehended appellant at gunpoint. Cardenas testified the neighborhood
1
The pictures admitted into evidence showed that Hernandez’s half of the duplex was between the garage and the other half of the duplex..
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around the station was the highest burglary area in Oak Cliff because criminals come into the
area on a train or bus, burglarize homes, and get away on a train or bus.
Officer Hector Parrilla testified he responded to a robbery-in-progress call at 11:50 a.m.
He went to Hernandez’s house and spoke with her. Hernandez told Parrilla she was in her
bedroom and heard a noise in the living room. When she went to the living room, she saw
appellant standing there holding a “metal tube with a curved tube on the top.” Appellant looked
at Hernandez and said, “What’s up?” while holding the tube. Hernandez said appellant was
“menacing” and she got scared because she believed he was going to attack her. She went in the
kitchen and grabbed a knife. Appellant “bolted” out of the house. Parrilla testified he believed
the tube Hernandez described was a crowbar, which is one of the most preferred tools of
burglars.
Officer Cesar Soto testified he was five blocks away from the burglary location when he
heard the police dispatcher report a home invasion. He heard another officer radio that he was
following the suspect, who had walked to the train station. Soto drove to the station. Another
officer reported that the suspect had seen the patrol cars and had crawled under a bus. Soto
testified he and two other officers surrounded the bus, and at gunpoint, ordered the suspect to
come out. Appellant, who was wearing a white jacket and black pants, crawled from underneath
the bus. Soto testified he looked for a pipe, but never found it. However, when he searched
appellant, he found a flathead screwdriver in appellant’s front pocket.
APPLICABLE LAW
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence
in the light most favorable to the verdict and determine whether a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443
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U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894–95 (Tex. Crim. App. 2011); Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We must defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
The State was required to prove beyond a reasonable doubt that appellant, without the
effective consent of the owner, entered a habitation with intent to commit theft. See TEX. PENAL
CODE ANN. § 30.02(a) (West 2011). Intent is a fact issue for the jury. Robles v. State, 664
S.W.2d 91, 94 (Tex. Crim. App. 1984). Proof of a culpable mental state generally relies upon
circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). Intent can
be inferred from the acts, words, and conduct of the accused, and is to be resolved by the trier of
fact from all of the facts and the surrounding circumstances. Dues v. State, 634 S.W.2d 304, 305
(Tex. Crim. App. 1982).
DISCUSSION
Appellant does not dispute that he entered Hernandez’s home without consent. Rather,
he contends the evidence is insufficient to support the finding that he entered the home with the
intent to commit theft. Appellant asserts that because the offense did not occur at night, there is
no presumption he attempted to commit theft, and mere entry into a habitation is not sufficient
evidence to show intent to commit a felony or theft. Appellant also argues that because none of
Hernandez’s property was disturbed and he did not have a vehicle or bag to carry anything away,
the evidence was insufficient to show intent to commit theft. The State responds that the
evidence is sufficient to support the conviction.
Property need not be taken for proof of intent to commit theft to be sufficient. Ortega v.
State, 626 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1981). The jury heard Hernandez’s
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testimony that appellant, whom she did not know, entered her house without consent, made a
menacing gesture while holding a pipe, and fled when she ran to the kitchen and grabbed a knife.
Appellant fled the scene and was later apprehended at the train station. It was the jury’s role, as
the fact-finder in this case, to resolve any conflicts in the evidence and to accept or reject any and
all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (West
1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury could
reasonably conclude that appellant entered Hernandez’s home with the intent to commit theft.
Having reviewed all of the evidence under the appropriate standard, we conclude it is sufficient
to support the jury’s verdict. We overrule appellant’s sole point of error.
We affirm the trial court’s judgment.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
Do Not Publish
TEX. R. APP. P. 47
121122F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PATRICK MARQUIS MOSES, Appeal from the Criminal District Court
Appellant No. 4 of Dallas County, Texas (Tr.Ct.No.
F11-62662-K).
No. 05-12-01122-CR V. Opinion delivered by Chief Justice Wright,
Justices Myers and Evans participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered May 17, 2013.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
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