AFFIRM; and Opinion Filed May 31, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-00180-CR

                                KELLY MONK, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F11-398859-N

                               MEMORANDUM OPINION
                       Before Justices Lang-Miers, Murphy, and Fillmore
                                Opinion by Justice Lang-Miers
       A jury convicted appellant Kelly Monk of burglary of a habitation. He pleaded true to

prior convictions for robbery and burglary of a building, and the trial court sentenced him to 38

years in prison. Appellant argues on appeal that the evidence is insufficient to support the

conviction and the trial court erred by refusing to submit an instruction on the lesser included

offense of criminal trespass. For the following reasons, we affirm the trial court’s judgment.

                                          BACKGROUND

       The complainant went on vacation in September 2011 and gave a key to her house to her

neighbor Annie DeCluette, who lived across the street. DeCluette said she is a “nosey neighbor”

and every night before she goes to bed she looks out her window at her neighbors’ houses “to see

if there is anything going on.” She testified that one night while the complainant was on vacation

she heard a noise around 11 pm and looked outside. She saw a white “truck looking like a car” in
the complainant’s driveway. She saw a man dressed in an orange shirt and khaki shorts trying to

break a window. She called 911 and described what she saw for the operator.

         Dyhann Richardson, a neighbor who lives next door to the complainant, testified that she

heard glass breaking on the night of the offense, looked out, and saw someone at the

complainant’s house. She also saw a white Suburban in the complainant’s driveway that she had

never seen before, and she saw a man kicking in a front window. She called 911 and gave the

police a description of the man. He was wearing an orange shirt, khaki shorts, and white tennis

shoes.

         Lancaster police officer Jason Paul Rohack testified that he and other officers responded

to a burglary in progress. The dispatcher advised that someone called about seeing a male pull up

in front of her neighbor’s house in a white Suburban, get out, and walk around the house several

times looking in the windows, and that the neighbor was out of town. He testified that when he

arrived at the house, he observed a broken window at the front of the house. Then he saw

someone inside the house peeking out of the blinds; the person was wearing an orange shirt

matching the description he had been given. Rohack instructed the person to come out. The

person said okay, but then he disappeared from Rohack’s view. Rohack told the other officers to

go to the back of the house. About a minute later, Rohack heard the officers ordering someone to

get off the fence. Rohack ran to the back of the house and saw appellant climbing over the fence.

The officers pulled appellant off the fence and arrested him for burglary of a habitation. He did

not have any stolen property or weapons on his person. The white Suburban in the driveway was

registered to appellant.

         After appellant was arrested, Rohack and DeCluette went inside the complainant’s home

to secure the window. DeCluette said there was broken glass inside, the room was in disarray,




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items were overturned, and several lights were on. Rohack said the closet doors were open and it

appeared that someone had gone through the dresser drawers in the bedroom.

       The complainant testified that she had not given anyone permission to go in her home

while she was gone and that she left the garage and kitchen lights on. She also testified that she

did not know appellant and did not know if she had ever met him.

                                SUFFICIENCY OF THE EVIDENCE

       In issue one, appellant challenges the sufficiency of the evidence to support the

conviction. He does not dispute that he entered the complainant’s house without consent. Instead,

he argues there is no evidence that he entered with the intent to commit theft. He supports his

argument by pointing out that he did not have any property belonging to the complainant on his

person when he was arrested, no property was removed from the complainant’s house, no stolen

property was found in his vehicle, and there was no evidence that he was in need of money.

       In reviewing a challenge to the sufficiency of the evidence to support a conviction, we

must consider all the evidence and reasonable inferences therefrom in the light most favorable to

the verdict and determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.

Crim. App. 2011). We determine whether inferences are reasonable based upon the combined

and cumulative force of all the evidence when viewed in the light most favorable to the jury’s

verdict. Goad v. State, 354 S.W.3d 443, 450 (Tex. Crim. App. 2011).

       A person commits burglary of a habitation when the person, without the effective consent

of the owner, enters a habitation with intent to commit theft. TEX. PENAL CODE ANN.

§ 30.02(a)(1) (West 2011). Intent is a fact issue for the jury and may be inferred from the

circumstances. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984); Dues v. State, 634

S.W.2d 304, 305 (Tex. Crim. App. 1982). It is not necessary for the State to prove a theft was

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actually committed or the appellant possessed stolen property. See Richardson v. State, 888

S.W.2d 822, 824 (Tex. Crim. App. 1994). The harm results from the entry of the habitation

because it is an intrusion into the occupant’s reasonable expectation of privacy. See id.

       In this case, the jury heard evidence that appellant drove up to the complainant’s house at

night, walked around the house looking in the windows, kicked in a window to gain access to the

inside, and entered the house without the complainant’s consent. When the police arrived and

asked appellant to come out of the house, he ran. Inside, closet doors and dresser drawers were

open as if someone had been going through them. Based on this evidence, the jury could

reasonably conclude that appellant intended to commit theft. See Gear, 340 S.W.3d at 747–48.

Having reviewed the evidence under the appropriate standard, we conclude that it is sufficient to

support the jury’s verdict. We resolve issue one against appellant.

                            LESSER INCLUDED OFFENSE INSTRUCTION

       In issue two appellant argues that the trial court erred by refusing to charge the jury on

the lesser included offense of criminal trespass. We use a two-prong test to determine whether a

defendant is entitled to an instruction on a lesser included offense. Hall v. State, 158 S.W.3d 470,

473 (Tex. Crim. App. 2005). The first prong requires us to determine whether the offense for

which the instruction was requested is a lesser included offense of the charged offense. Id. The

second prong requires us to determine whether the record contains some evidence that would

permit a rational jury to find the defendant is guilty only of the lesser included offense. Id. The

evidence must establish that a rational jury could acquit the defendant of the greater offense

while convicting him of the lesser. Id. In making our determination about whether the test was

met, we evaluate the evidence in the context of the entire record, but we do not consider whether

the evidence is credible, controverted, or in conflict. Id.




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       A person commits criminal trespass if he “enters . . . property of another . . . without

effective consent and the person had notice that the entry was forbidden or received notice to

depart but failed to do so.” TEX. PENAL CODE ANN. § 30.05(a) (West Supp. 2012). The

indictment alleged that appellant “intentionally and knowingly enter[ed] a habitation without the

effective consent of . . . the owner . . . with the intent to commit theft[.]” See id. § 30.02(a)(1)

(West 2011). We conclude that in this case criminal trespass is a lesser included offense of

burglary of a habitation. See Goad, 354 S.W.3d at 446.

       The second prong of the test requires us to determine whether the evidence would permit

a rational jury to find that appellant was guilty only of the lesser included offense. See id. In

other words, the relevant inquiry is whether the evidence would permit a rational jury to believe

that appellant’s only intent was to commit criminal trespass. See id. at 449.

       Appellant contends that he was entitled to the instruction on criminal trespass because

there was evidence he went in three rooms, the lights were on in those three rooms, and the

dresser drawers in the bedroom were open but no valuables were missing. He argues that a

reasonable inference is that he “was looking for something” and a rational jury could have

concluded that he entered the home looking for food or for an item that belonged to him.

       Appellant did not present any evidence during trial. There is no evidence that appellant

was looking for food, no evidence the kitchen was disturbed, and the complainant testified that

she left the kitchen light on when she left for vacation. Additionally, there is no evidence that

appellant was retrieving an item from the complainant’s house that belonged to him. The

complainant did not know appellant, there was no evidence appellant had ever been to the

complainant’s house, and the neighbors testified they did not recognize appellant or his vehicle.

There simply is no evidence to permit a rational jury to acquit appellant of burglary of a




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habitation and find him guilty of criminal trespass. Consequently, the trial court did not err by

denying the requested instruction. We resolve issue two against appellant.

                                         CONCLUSION

       We affirm the trial court’s judgment.



                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE


Do Not Publish
TEX.R.APP.P.47

120180F.U05




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                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

KELLY MONK, Appellant                                On Appeal from the 195th Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-00180-CR        V.                         Trial Court Cause No. F11-398859-N.
                                                     Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                         Justices Murphy and Fillmore participating.

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


Judgment entered this 31st day of May, 2013.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE




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