AFFIRM; Opinion Filed July 11, 2013.




                                            In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-00411-CR

                       DOUGLAS MARSHALL JACKSON, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 291st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1114835-U

                               MEMORANDUM OPINION
                             Before Justices Lang, Myers, and Evans
                                    Opinion by Justice Lang


       Douglas Marshall Jackson appeals his jury conviction for burglary of a habitation. In a

single issue, Jackson contends his conviction should be reversed because the evidence is legally

insufficient to support the conviction. We affirm the trial court’s judgment.

                                      I.     BACKGROUND

       Dorris Lago was in an upstairs bedroom of her step-mother’s house when she heard a

loud noise downstairs. As she looked around downstairs to see what caused the noise, she saw

Jackson, whom she knew, coming from the garage. Jackson took a stereo from the living room,

covered it with a bed sheet, and left. Lago reported the crime to the police, who later recovered

the stereo from a local pawn shop and arrested Jackson. Jackson was charged with committing

burglary under two alternative theories: (1) by entering Clark’s house without her consent and
with the intent to commit theft or (2) by entering Clark’s house without her consent and

committing or attempting to commit theft. See TEX. PENAL CODE ANN. § 30.02 (a)(1),(3) (West

2011).

         At trial, Lago testified that her step-mother, Suzanne Clark, was Jackson’s grandmother’s

caretaker. Lago testified she was scared when she found Jackson in the house because the doors

and windows were locked, and she did not know how he had entered. Jackson told her not to

worry and that he was “just hungry” and “want[ed] to eat.” Unsure what to do, Lago called

Clark at work. While on the telephone with Clark, Lago saw Jackson take the stereo. She told

Jackson to return the stereo, and when he refused, called the police.       Lago testified that after

Jackson left, she discovered the laundry room window had been opened.

         Clark testified she felt violated by Jackson’s actions and had not given him permission to

enter the house or take or pawn the stereo. She, too, called the police to report the crime, and

later gave the investigating officer the stereo’s serial number.

         Cedar Hill community service officer Deidre Greene testified she arrived at the house to

take Lago’s statement and found Lago crying, shaking, and “almost pretty much

hyperventilating.” Lago told her what had happened and showed her the window Jackson had

used to enter. Greene prepared a report, and the case was assigned to detective James Porter.

         Porter testified he verified the information in Green’s report and spoke with Clark two

days after the burglary. Based on the serial number Clark provided, he was able to locate the

stereo at a pawn shop. Surveillance video from the pawn shop and a receipt showed Jackson had

sold the stereo to the pawn shop within an hour of leaving Clark’s house.

         Testifying in his defense, Jackson admitted he took the stereo, but denied he broke into

Clark’s house. He testified that at six-foot-four, 285 pounds, he could not fit through the laundry

room window which was about five feet off the ground and less than eighteen inches long.

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According to Jackson, he was in a relationship with Clark. Jackson testified he had a key to her

house, had stayed in the house, had clothes in the house, had paid Clark rent, and had permission

to be in the house the day he took the stereo. He explained he took the stereo to the pawn shop

because Clark had asked him to leave her “some money and that was the only way [he] could get

her some money.”      Asked why Clark would testify that she had not given him permission to

enter the house, Jackson stated that Clark, a foster mother, feared losing her foster care license if

she admitted that, contrary to licensing rules, she had allowed an unrelated male to stay at her

house. On cross-examination, Jackson admitted he had two previous burglary convictions and

had pawned the items stolen during those burglaries also.

       Authorized to convict Jackson upon a finding of either theory of burglary alleged in the

indictment, the jury returned a general verdict of guilty. Following evidence on punishment, the

jury assessed an enhanced thirty-five year sentence.

                              II.     SUFFICIENCY OF EVIDENCE

       Jackson’s sole issue challenges the sufficiency of the evidence to support the conviction.

Specifically, Jackson asserts no evidence exists he entered the house without Clark’s consent and

no evidence exists he intended to commit theft. In challenging the sufficiency of the evidence

regarding consent, he relies on his testimony that (a) he could not fit through the window Lago

claimed he used to enter the house, (b) he had a key to the house, (c) he had clothes in the house,

and (d) he had paid Clark rent. In challenging the sufficiency of the evidence to support intent,

Jackson relies on Lago’s testimony that he told her at the time that he was “just hungry” and

“wante[ed] to eat.” He also asserts the evidence of his prior convictions “carried an emotional

weight and dangerously impressed the jury in an irrational and indelible way.” In response, the

State asserts that whether Jackson entered the house through a window or door is irrelevant to




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whether he entered without Clark’s consent and further, that Jackson’s “pattern of burglarizing

and . . . pawn[ing] the stolen items support the inference of intent to commit theft.”

                                         A. Applicable Law

       A person commits the offense of burglary of a habitation if, without the owner’s consent,

he enters a habitation with the intent to commit a theft, commits a theft, or attempts to commit a

theft. See TEX. PENAL CODE ANN. § 30.02(a)(1),(3).            A person commits theft if he takes

property without the owner’s consent and with the intent to deprive the owner of the property.

See id. § 31.03(a),(b)(1) (West Supp. 2012); Byrd v. State, 336 S.W.3d 242, 250-51 (Tex. Crim.

App. 2011). “Effective consent” is defined as assent in fact, whether express or apparent, and

includes assent by a person legally authorized to act for the owner. See TEX. PENAL CODE ANN.

§§ 1.07(a)(11),(19), 31.01(3). “Deprive” means, in relevant part, to dispose of property in a

manner that makes it unlikely the owner will recover the property. Id. § 31.01(2)(C).

                                         B. Standard of Review

       In evaluating the legal sufficiency of the evidence to support a conviction, a reviewing

court considers all the evidence, whether properly admitted, in the light most favorable to the

verdict and determines whether, based on that evidence and reasonable inferences, a rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt. Gear v.

State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). Under this standard, the reviewing court gives deference to the trier of

fact’s resolution of any conflicts in testimony, weight of the evidence, and credibility

determinations. See Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Gear, 340

S.W.3d at 746. When, as here, the jury is authorized to convict the defendant on alternative

theories, the verdict will be upheld if the evidence is sufficient to support either theory. See

Grissam v. State, 267 S.W.3d 39, 41 (Tex. Crim. App. 2008)

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                                   C.     Application of Law to Facts

       With respect to the element of effective consent to enter property, we agree with the State

that whether Jackson entered the house through a window or door is irrelevant to the issue of

consent. See DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988) (“The gravamen of

the offense of burglary clearly remains entry of a building or habitation without the effective

consent of the owner, accompanied by either the required mental state, under §§ 30.02(a)(1) and

(2) . . . or the further requisite acts or omissions, under § 30.02(a)(3) . . ..”). What matters is

whether consent was given. See Evans v. State, 677 S.W.2d 814, 818 (Tex. App.—Fort Worth

1984, no pet.) (“A person can make an unlawful entry by walking through an open door when

the entry is without the owner’s consent.” (citations omitted)). Here, Clark testified that she did

not give Jackson permission to enter the house, and from this testimony, a rational juror could

have found beyond a reasonable doubt that Jackson’s entry was without consent. See TEX. PENAL

CODE ANN. §§ 1.09(a)(11),(19); Ellet v. State, 607 S.W.2d 545, 550 (Tex. Crim. App. [Panel

Op.] 1980) (testimony that no consent given sufficient to establish absence of effective consent).

Although Jackson relies on his testimony in support of his contention that he had consent, the

standard of review requires us to view the evidence in the light most favorable to the verdict.

See Gear, 340 S.W.3d at 746. Moreover, as the fact-finder, the jury was free to resolve any

conflicts in the testimony and determine the witnesses’ credibility. See Merritt, 368 S.W.3d at

525; Gear, 340 S.W.3d at 746. By returning a verdict of guilty, the jury necessarily resolved

conflicts in testimony in the State’s favor, and we will not disturb the jury’s determination.

       As to Jackson’s challenge to the sufficiency of the evidence to support the element of

intent to commit theft, we need not address this argument because the jury was also authorized to

convict Jackson under the theory that he committed theft, and the evidence is sufficient to

support that theory. See Grissam, 267 S.W.3d at 41. Jackson did not deny at trial that he took

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the stereo, that Lago told him to return it, that Clark did not give him consent to take the stereo

and pawn it, and that he pawned it. From this evidence, the jury could have found beyond a

reasonable doubt that Jackson took the stereo without Clark’s consent and intended to deprive

her of it. See Dickerson v. State, 740 S.W.2d 567, 570 (Tex. App.—Fort Worth 1987, pet. ref’d)

(evidence sufficient to support conviction for burglary where stolen items pawned near time of

burglary). That Clark may have wanted money does not negate this. Nor does the contention

that the evidence of Jackson’s prior burglary convictions “carried an emotional weight and

dangerously impressed the jury in an irrational and indelible way.” Jackson did not object to this

evidence at trial, and even if this evidence was improperly admitted, our determination of the

sufficiency of the evidence includes a review of all the evidence, whether properly admitted. See

Clayton, 235 S.W.3d at 778.

       Because we conclude the evidence is legally sufficient to show Jackson entered Clark’s

house without her consent and committed theft, we resolve Jackson’s sole issue against him.

                                       III.   CONCLUSION

       Having resolved Jackson’ sole issue against him, we affirm the trial court’s judgment.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47
120411F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DOUGLAS MARSHALL JACKSON,                             On Appeal from the 291st Judicial District
Appellant                                             Court, Dallas County, Texas
                                                      Trial Court Cause No. F-1114835-U.
No. 05-12-00411-CR         V.                         Opinion delivered by Justice Lang. Justices
                                                      Myers and Evans participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 11th day of July, 2013.




                                                      /Douglas S. Lang/
                                                      DOUGLAS S. LANG
                                                      JUSTICE




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