                                            NO. 12-08-00374-CR

                                IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                                TYLER, TEXAS

TAVAERAS L. KIMBLE,                                         §        APPEAL FROM THE 159TH
APPELLANT

V.                                                              §    JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                        §    ANGELINA COUNTY, TEXAS


                                              MEMORANDUM OPINION
           Tavaeras L. Kimble appeals his convictions for aggravated sexual assault, kidnapping, and
burglary of a habitation. In two issues, Appellant argues that the evidence is legally insufficient to
support his convictions for aggravated sexual assault and burglary of a habitation. We affirm.


                                                       BACKGROUND
           Appellant was charged by indictment with aggravated sexual assault, a first degree felony,1
aggravated kidnapping, a first degree felony,2 and burglary of a habitation, a second degree felony.3
Appellant pleaded Anot guilty.@
           At trial, Jane Doe4 testified that on October 23, 2007, she traveled to the Angelina County


           1
               See TEX. PENAL CODE ANN. § 22.021(a), (e) (Vernon Supp. 2009).
           2
               See TEX. PENAL CODE ANN. § 20.04(a), (c) (Vernon 2003).
           3
               See TEX. PENAL CODE ANN. § 30.02(a), (c)(2) (Vernon 2003).
           4
               In its brief, the State refers to the victim of the offenses as “Jane Doe.” We will do the same in this
opinion.
courthouse to sign an application for a protective order against Appellant, and to the police station to
obtain copies of offense reports. Then, she decided to visit a friend and pulled into a neighboring
driveway. When she attempted to back out of the driveway, a brown vehicle blocked her way and
Appellant jumped out of it. According to Jane Doe, Appellant rushed her car, attempted to break the
passenger window with his fist, and then threw a rock and broke the window. Jane Doe stated that
Appellant jumped through the window, gave her a black eye by head butting her, grabbed her cellular
telephone, and bit her in the chest. She testified that she begged Appellant to not make matters
worse, and got out of the vehicle. However, Appellant also left the vehicle, hugged her, and fell to
his knees professing his love for her. Jane Doe stated that Appellant told her to get in the car, and
opened the back door. She stated that she got in the back seat of her vehicle, and asked him to go to
the hospital because she believed her arm was broken from the rock thrown through the window of
her car.
           Jane Doe testified further that Appellant refused to take her to the hospital and began talking
about what he could and would do to her. She also testified that Appellant told her he could get her
killed. Appellant then drove them to his mother’s house and parked in the back yard. Jane Doe
stated that Appellant was upset and told her that she needed to tell him the truth because “he would
beat [her] and then make [her] drive out of the yard and kill [her], beat [her]. He could kill [her].”
She stated that she believed he would do it. After going to a car wash, they returned to his mother’s
house. Appellant continued to threaten her by talking about how he could “do stuff” to her and that
he had some “home boys that lived around him.” Then, according to Jane Doe’s testimony, she and
Appellant went to Appellant’s room through the window. While Appellant “tended to” Jane Doe’s
bites, he told her that he could beat her up in that room, that his mother was not going to say
anything, and that if she screamed “or anything,” his mother would “call the cops” on her because
she was not supposed to be there.
           Jane Doe stated that they stayed in Appellant’s bedroom for two nights, and that they had sex
even though she did not want to. Based on what he had already done to her, she did not know what
he would do if she refused to have sex with him, but believed that he would “maybe even kill” her.
Jane Doe also testified that Appellant had already caused her bodily harm and injuries, and that she
did not believe she had any other choice. On the third day, Appellant and Jane Doe left to obtain a
window for her vehicle. Afterwards, they stopped at a grocery store to get money and something to



                                                     2
eat. Jane Doe stated that Appellant stayed in the car. While she was in the grocery store, Jane Doe
told a store clerk that she had been kidnapped and asked the clerk to call the police. Shortly
thereafter, the police arrived and arrested Appellant.
       Jane Doe also testified that on October 11, 2007, she and Appellant had a confrontation at her
apartment. While Appellant was looking for a key, she pretended to call the light company from a
telephone booth and instead called 911. She told the dispatcher what had occurred, asked that the
police meet her at a car wash, gave them her address, and hung up when Appellant came back. When
the police arrived, Jane Doe told them that she wanted Appellant to leave. She gathered all of
Appellant’s belongings and gave them to him. She testified that Appellant was given a criminal
trespass warning and left with the police officer. The next day, Jane Doe discovered property
missing from her apartment, including a Sony PlayStation 2, a college football PlayStation game, an
NBA basketball PlayStation game, a DVD player, a pair of hair clippers, and a movie. She reported
the theft to the Lufkin police department. Jamie Jinkins, a detective with the Lufkin Police
Department, stated that on October 12, 2007, Jane Doe reported these items stolen from her
residence. Detective Jinkins stated that in his investigation of the incident beginning October 23,
2007, he recovered the movie, DVD player, Sony PlayStation 2, and both PlayStation games from
Appellant’s room. Jane Doe identified these items as those stolen from her apartment. However,
Appellant stated that he bought these items at K-Mart, and that, on October 11, the police officer
retrieved them from Jane Doe’s apartment and gave them to him.
       After the trial concluded, the jury found Appellant guilty of aggravated sexual assault,
kidnapping,5 and burglary of a habitation as charged in the indictment. The jury also assessed
Appellant’s punishment at fifty years of imprisonment and a $10,000 fine for the offense of
aggravated sexual assault; ten years of imprisonment and a $5,000 fine for the offense of kidnapping;
and five years of imprisonment and a $2,000 fine for the offense of burglary of a habitation. This
appeal followed.


                                       AGGRAVATED SEXUAL ASSAULT
       In his first issue, Appellant contends that the evidence is legally insufficient to support his
conviction for aggravated sexual assault. More specifically, Appellant argues that there is no

       5
           According to the verdict form, the jury found Appellant not guilty of the offense of aggravated kidnapping,


                                                          3
evidence that any threats were made at or near the time of the sexual assault, that any threats were
made to facilitate the sexual assault, or that any level of imminent fear was associated with the
sexual assault.
Standard of Review
         ALegal sufficiency is the constitutional minimum required by the Due Process Clause of the
Fourteenth Amendment to sustain a criminal conviction.@ Escobedo v. State, 6 S.W.3d 1, 6 (Tex.
App.BSan Antonio 1999, pet. ref=d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct.
2781, 2786-88, 61 L. Ed.2d 560 (1979)). The standard of review is whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The
evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained Aunless it is found to be irrational
or unsupported by more than a >mere modicum= of the evidence.@ Moreno v. State, 755 S.W.2d 866,
867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses and of the
weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).
Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury=s domain.
Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). If a reviewing court finds the
evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457
U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
Applicable Law
         A person commits the offense of aggravated sexual assault if while committing sexual
assault, the person, by acts or words, places the victim in fear that death, serious bodily injury, or
kidnapping will be imminently inflicted on any person, or, by acts or words occurring in the presence
of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person. See
TEX. PENAL CODE ANN. § 22.021(a)(1), (2)(A)(ii), (iii) (Vernon Supp. 2009). The fear of
“imminent” death or serious bodily injury does not refer to the conditional or unconditional nature of
the threat, so long as the threat is of present injury or death, rather than of some future consequence.
Brown v. State, 960 S.W.2d 265, 268 (Tex. App.–Corpus Christi 1997, no pet.). Further, the term
“imminent,” as it relates to threats of bodily injury or death in various sections of the penal code, is


but guilty of the lesser included offense of kidnapping.


                                                           4
 interpreted to mean that such injury or death is “ready to take place, near at hand, impending,
 hanging threateningly over one’s head, menacingly near.” Id. at 268 n.1 (quoting Devine v. State,
 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)).
 Analysis
         Jane Doe testified that Appellant broke the passenger window of her vehicle with a rock,
 injuring her arm, head butted her, and bit her. After this confrontation, Appellant told her that he
 could and would have her killed, and specifically mentioned some “home boys” who lived near him.
 Further, Jane Doe testified that Appellant said he could “do stuff” to her, and threatened to beat her,
 make her drive out of the yard, and kill her. He also told her that he could beat her up in his
 mother’s house, that his mother was not going to say anything, and that if she screamed “or
 anything,” his mother would call the police. Jane Doe stated that she had sex with Appellant because
 she believed she had no choice. She stated that she did not know what Appellant would do if she
 refused, that he had already injured her, and that she thought he might kill her.
         Other than his threat regarding his mother, Appellant’s words were unconditional threats of
 impending death or serious bodily injury to Jane Doe. Appellant’s continued and various threats
 were of death or serious bodily injury that was “near at hand” and “hung threateningly over [Jane
 Doe’s] head.” See id. at 268 n.1. Consequently, we conclude that Appellant placed Jane Doe in fear
 that death or serious bodily injury would be imminently inflicted upon her. See id. at 268. Viewing
 the evidence in the light most favorable to the jury=s verdict, we conclude that a rational trier of fact
 could have found the elements of aggravated sexual assault beyond a reasonable doubt. Therefore,
 the evidence is legally sufficient to support Appellant=s conviction. Appellant’s first issue is
 overruled.


                                    BURGLARY      OF A HABITATION

       In his second issue, Appellant argues that the evidence is legally insufficient to support his
conviction for burglary of a habitation. He contends that the State offered no proof that the property
was stolen or that Jane Doe owned the property. Further, Appellant contends that he offered a
reasonable explanation for his possession of the property.
Applicable Law
       A person commits the offense of burglary of a habitation if, without the effective consent of the



                                                    5
owner, the person enters a habitation and commits or attempts to commit a theft. TEX. PENAL CODE
ANN. § 30.02(a)(3) (Vernon 2003). A person commits the offense of theft if he unlawfully appropriates
property with intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon
2003). Appropriation of property is unlawful if it is without the owner=s effective consent. Id.
§ 31.03(b)(1). AAppropriate@ means to acquire or otherwise exercise control over property other than
real property. Id. § 31.01(4)(B). A defendant=s exclusive and unexplained possession of property
recently stolen permits an inference that the defendant is the one who committed the offense. Rollerson
v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State, 185 S.W.3d 904, 905 (Tex.
Crim. App. 2006). If a defendant offers an explanation as to his possession of recently stolen property,
the record must demonstrate that the defendant’s explanation at the time his possession is called into
question is either false or unreasonable before the evidence will support a burglary conviction. Price v.
State, 902 S.W.2d 677, 680 (Tex. App.–Amarillo 1995, no pet.). An accused=s intent at the time of an
incident must usually be inferred from circumstantial evidence rather than direct proof. Scott v. State,
202 S.W.3d 405, 408 (Tex. App.BTexarkana 2006, pet. ref=d) (citing Hernandez v. State, 819 S.W.2d
806, 810 (Tex. Crim. App. 1991)).
Analysis
       Jane Doe testified that on October 11, 2007, she had a confrontation with Appellant that resulted
in his receiving a criminal trespass warning. She also stated that she removed all of his belongings from
her apartment after the confrontation and gave them to him. Jane Doe testified that she reported items
missing from her apartment on October 12, including a Sony PlayStation 2, two games for the
PlayStation 2, a DVD player, and a movie. Detective Jinkins confirmed that Jane Doe reported these
items missing on October 12. He stated that he found the stolen items in Appellant’s room during his
investigation of the incident beginning on October 23.
       A defendant=s exclusive and unexplained possession of property recently stolen permits an
inference that the defendant is the one who committed the offense. See Rollerson, 227 S.W.3d at 725;
Poncio, 185 S.W.3d at 905. Appellant asserts that he bought these items at K-Mart and that the police
officer retrieved the items from Jane Doe’s apartment and returned them to his possession on
October 11. However, there is nothing either in Jane Doe’s testimony or in the other evidence in the
case to support that assertion. Under the surrounding circumstances, the trier of fact was justified in


                                                  6
rejecting Appellant’s explanation as both unreasonable and false. See Price, 902 S.W.2d at 681.
Viewing the evidence in the light most favorable to the jury=s verdict, we conclude that a rational trier of
fact could have found the elements of burglary of a habitation beyond a reasonable doubt. Therefore,
the evidence is legally sufficient to support Appellant=s conviction. Appellant’s second issue is
overruled.


                                                     DISPOSITION
         The judgment of the trial court is affirmed.


                                                                JAMES T. WORTHEN
                                                                   Chief Justice


Opinion delivered November 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)
