AFFIRMED; Opinion Filed July 12, 2013.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-00916-CR

                         PAULA JOYCE WARREN, Appellant
                                                 V.
                           THE STATE OF TEXAS, Appellee

                        On Appeal from the Criminal District Court No. 7
                                     Dallas County, Texas
                             Trial Court Cause No. F11-31042-Y

                                MEMORANDUM OPINION
                        Before Justices Moseley, Bridges, and Lang-Miers
                                   Opinion by Justice Moseley

       A jury convicted Paula Joyce Warren of burglary of a habitation. The trial court assessed

punishment at five years’ imprisonment. Warren appeals and argues in four issues that the

evidence is insufficient to convict her as a primary actor, as a party, or as a conspirator; and that

she suffered egregious harm from an error in the charge.

       The background of the case and the evidence adduced at trial are well known to the

parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in

law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial

court’s judgment.
                                           BACKGROUND

       The complainant, Paul Audet, returned early from a camping trip to find his home in

Grand Prairie ransacked. Several items had been stolen and gasoline had been poured around the

interior of the house. Some papers and a towel were found burned inside the house, along with a

near-empty gasoline can.

       An anonymous caller told police that a white Pontiac containing stolen items was parked

at a certain address. Officer Randall Rogers went to the address and found the car parked in

front of Warren’s residence. In the back seat of the car were items stolen from Audet’s house.

Warren admitted she owned the car. She was nervous, but cooperated. She initially said the

items in the car belonged to her son, Christopher Boatmun, but then said they belonged to his

friend. Warren told Rogers she did not know where Boatmun was. She said Boatmun called her

and asked her to pick him up at Audet’s house. After she picked him up and was driving him

home, he jumped out of the car and left.

       Audet had motion-activated video cameras around his house. The recordings show

Boatmun pulling down window screens, removing several items from the home, and talking on a

cell phone. At 7:38 a.m., Boatmun is shown carrying a gas can into the house. Around 8:00

a.m., Warren’s car is shown driving past the house a couple of times before pulling into a

driveway. While Warren sat in the car, Boatmun loaded several items into the back seat.

Warren got out of her car and walked to the back of the house. At 8:05:56 a.m., Warren entered

the home by climbing through a broken sliding glass door. She exited the house with Boatmun

about thirty seconds later; She returned to the car followed by Boatmun; he was carrying a large

bag, which he put in the back seat. Warren then drove away with Boatmun and the stolen items

in the car. About three hours after leaving the house, Warren called the Audet house and left a

message saying someone had called her from that number and that they could call her back.


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       Officer Peterson was the first person to enter the house after the burglary. He arrived

around 3:00 p.m. He testified the inside of the house had been doused with gasoline and the odor

was so powerful he had to open all the doors to get ventilation. Peterson found pieces of burnt

paper and an almost empty gas can inside the house.

       Arson investigator Tommy Owens testified that gasoline had been poured and splashed in

a pattern consistent with a trail from the ignition point to an exit point for the arsonist. In his

opinion, from the amount of gasoline throughout the house, the arsonist intended to burn the

house to the ground.

                                SUFFICIENCY OF THE EVIDENCE

       We review the evidence under the legal sufficiency standard of review. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011), cert. denied, 132 S. Ct. 1763 (2012). In a legal sufficiency review, “we view all of the

evidence in the light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Adames, 353

S.W.3d at 860. This standard “recognizes the trier of fact’s role as the sole judge of the weight

and credibility of the evidence after drawing reasonable inferences from the evidence.” Id. We

measure the sufficiency of the evidence by the elements of the offense as defined by a

hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997)).

       As applicable here, a person commits burglary if, without effective consent of the owner,

she enters a habitation and commits or attempts to commit a felony, theft, or assault. TEX.

PENAL CODE ANN. § 30.02(a)(3) (West 2011). A person commits arson if the person starts a fire,

regardless of whether the fire continues after ignition, with intent to destroy or damage any

habitation knowing it is located within the limits of an incorporated city or town. TEX. PENAL


                                               –3–
CODE ANN. § 28.02(a)(2)(A).

       A person is criminally responsible as a party to an offense if the offense is committed by

his own conduct, by the conduct of another for which he is criminally responsible, or by both.

See TEX. PENAL CODE ANN. § 7.01(a).         A person is criminally responsible for an offense

committed by the conduct of another if, acting with intent to promote or assist the commission of

the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit

the offense. See id. § 7.02(a)(2). If, in the attempt to carry out a conspiracy to commit one

felony, another felony is committed by one of the conspirators, all conspirators are guilty of the

felony actually committed, even if they had no intent to commit it, if the offense was committed

in furtherance of the unlawful purpose and should have been anticipated as a result of carrying

out the conspiracy. See id. § 7.02(b).

       In determining whether the accused is guilty as a party, we may consider events

occurring before, during, and after commission of the offense and may rely on actions of the

defendant that show an understanding and common design to commit the offense. See King v..

State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); Edwards v. State, 106 S.W.3d 833, 842 (Tex.

App.—Dallas 2003, pet. ref’d). Although mere presence at the scene of the offense is not

enough, presence is a circumstance tending to prove guilt, which, when combined with other

facts, may suffice to show the accused was a participant. See Beardsley v. State, 738 S.W.2d

681, 685 (Tex. Crim. App. 1987); Edwards, 106 S.W.3d at 842.

       The jury charge permitted the jury to convict Warren as a principal, as a party under

section 7.02(a)(2), or as a conspirator under section 7.02(b). Because the trial court’s charge

authorized the jury to convict on alternative theories, the verdict of guilt will be upheld if the

evidence was sufficient on any one of the theories. Sorto v. State, 173 S.W.3d 469, 472 (Tex.




                                               –4–
Crim. App. 2005). We discuss the sufficiency of the evidence to support Warren’s conviction as

a party, which is the subject of her second issue.

       There is evidence in the record that Warren did not have Audet’s consent to enter his

house, that she entered Audet’s house through a broken sliding door, that gasoline was poured

inside the house, and a fire was started inside the house. Warren allowed Boatmun to load items

taken from the house into her car and drove away from the house with Boatmun and the

property. There is evidence Warren communicated with Boatmun before she arrived at the house

and she called the house after she left. The video recording indicates she drove by the house

several times before pulling into the driveway.

       Considering all the evidence (including that summarized above) in the light most

favorable to the verdict, we conclude a rational trier of fact could have found beyond a

reasonable doubt that Warren, with intent to assist the commission of burglary of a habitation,

aided or attempted to aid Boatmun to commit the offense, and was thus guilty as a party. See

TEX. PENAL CODE ANN. § 7.02(a)(2); Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. We

overrule Warren’s second issue. Because the evidence is sufficient to support her culpability as

a party, we do not address Warren’s first and third issues. See TEX. R. APP. P. 47.1; Sorto, 173

S.W.3d at 472.

                                         CHARGE ERROR

       In her fourth issue, Warren contends the jury charge erroneously instructed the jury on

burglary under penal code section 30.02(a)(1) rather than burglary under section 30.02(a)(3) as

alleged in the indictment. Warren did not object to the jury charge on this basis.

       The indictment charged that Warren entered a habitation without the effective consent of

Audet and committed a felony, namely, arson.            This is burglary under penal code section

30.02(a)(3). TEX. PENAL CODE ANN. § 30.02(a)(3). The jury charge, however, instructed the


                                                  –5–
jury under penal code section 30.02(a)(1), entering a habitation without effective consent of the

owner “with intent to commit a felony, theft, or an assault.”            TEX. PENAL CODE ANN.

§ 30.02(a)(1) (emphasis added). The State concedes this was error, but argues the error did not

result in egregious harm to Warren.

       Our first duty in analyzing a jury charge issue is determining whether error exists. Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Because the State concedes the error, we

turn to whether the error was harmful.

       Jury charge error is not forfeited by a defendant’s failure to object at trial. Cosio v. State,

353 S.W.3d 766, 776 (Tex. Crim. App. 2011) (discussing Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g)). The failure to object controls the type of harm analysis

that will be applied. Id. Because Warren did not object at trial, we will reverse only if the error

resulted in egregious harm. Ngo, 175 S.W.3d at 738; Almanza, 686 S.W.2d at 171.

       Egregious harm must be based on a finding of actual rather than theoretical harm. Cosio,

353 S.W.3d at 777. To establish actual harm, the charge error must have affected “the very basis

of the case,” “deprive[d] the defendant of a valuable right,” or “vitally affect[ed] a defensive

theory.”   Id. (quoting Almanza, 686 S.W.2d at 171).         When assessing harm based on the

particular facts of the case, we consider: (1) the charge; (2) the state of the evidence, including

contested issues and the weight of the probative evidence; (3) the parties’ arguments; and (4) all

other relevant information in the record. Id.

       Entering a habitation without effective consent of the owner is common to both burglary

under subsection (a)(1) and (a)(3) of section 30.02. See TEX. PENAL CODE ANN. § 30.02(a)(1),

(3). The subsections differ in that (a)(1) requires entry with intent to commit a felony, theft, or

assault, while (a)(3) requires entry and the commission or attempt to commit a felony, theft, or




                                                –6–
assault. The jury charge instructed the jury on the definitions of habitation, effective consent,

owner, entry, and intentional or knowing conduct. The charge also instructed the jury on the law

of parties and conspiracy. In addition, the jury charge contains instruction on the lesser included

offense of criminal trespass.

       The jury charge gave an instruction under section 30.02(a)(1) in the abstract portion and

the first part of the application portion. The application portion also instructed the jury that if

they found from the evidence beyond a reasonable doubt:

       Said defendant, PAULA JOYCE WARREN, entered into a conspiracy with
       CHRISTOPHER BOATMUN to commit the felony offense of burglary of a
       habitation with the intent to commit a felony, and that in the attempt to carry out
       this agreement, if any, PAULA WARREN did then and there unlawfully,
       intentionally or knowingly enter a habitation without the effective consent of
       PAUL AUDET, the owner thereof, and did then and there commit a felony other
       than theft, namely, arson, then you will find the defendant guilty.

(emphasis added).

       During deliberations, the jury sent out a note with three questions:

               (1) To be guilty of the burglary, with intent to commit a felony, namely
                      arson, would she have to have:

                       (a) Aided in the actual arson or committed the arson?

                       (b) Entered the property with the intention of aiding the act of
                       arson?

               (2) Is it a reasonable assumption that an act of burglary could lead to an
                        act of arson?

               (3) If she assisted in the burglary, is she guilty of assisting in the arson?

       The trial court responded by instructing the jury:

               With regard to question two, this is an issue that is within the exclusive
               province of the jury and it is for the jury to resolve this question.

               With regard to questions one and three, these are legal questions and your
               legal instructions with regard to the resolution of these questions are
               contained within the entirety of the instructions. Please closely read the



                                                 –7–
               entirety of the instructions again.

       In response to a jury note asking for definitions of arson and intent to commit arson, the

trial court referred the jury to the definition of intentional conduct in the original charge and gave

them a definition of arson.

       Considering the entire charge and the trial court’s responses to the jury questions, this

factor weighs only slightly in favor of finding egregious harm.

       The state of the evidence does not indicate Warren was egregiously harmed by the error

in the jury charge. The defense developed its theory that there was no evidence that Warren

started the fire. The State never argued that even if Warren did not start the fire, she entered the

house with the intent to commit arson. The video shows Warren entering a house that had been

doused with gasoline and quickly leaving with Boatmun. There was evidence a fire was started

inside the house, although for unknown reasons the fire did not spread. The evidence also

showed Warren allowed Boatmun to place several items from the house in her car, entered the

house herself through one of several broken windows, and then quickly left with Boatmun and

the stolen property. This factor does not weigh in favor of finding egregious harm.

       Regarding the arguments of counsel, both the prosecutor and defendant’s counsel referred

to the incorrect jury charge. However, both developed their theories of the case. The central

theme of the State’s argument was that Warren was a party to the offense by aiding and abetting

Boatmun in committing burglary and arson. The defense put forth its theory that Warren was

merely present at the scene and did not commit arson. The defense argued it was a reasonable

inference from the evidence that Warren went into the house to put the fire out after Boatmun

started it. The State argued it was also reasonable to infer she entered the house to start the fire

or slow it down with a towel to give them time to escape. This factor also does not weigh in

favor of egregious harm.


                                                 –8–
       Considering the entire record, we conclude the charge error did not affect the very basis

of the case, deprive defendant of a valuable right, or vitally affect a defensive theory. Actual

harm has not been shown and we cannot say that Warren was denied a fair and impartial trial.

We overrule Warren’s fourth issue.

       We affirm the trial court’s judgment.




                                                     /Jim Moseley/
                                                     JIM MOSELEY
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)
120916F.U05




                                               –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

PAULA JOYCE WARREN, Appellant                          On Appeal from the Criminal District Court
                                                       No. 7, Dallas County, Texas
No. 05-12-00916-CR         V.                          Trial Court Cause No. F11-31042-Y.
                                                       Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee                           Justices Bridges and Lang-Miers
                                                       participating.

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


Judgment entered this 12th day of July, 2013.




                                                   /Jim Moseley/
                                                   JIM MOSELEY
                                                   JUSTICE




                                                –10–
