Opinion filed September 11, 2014




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-13-00155-CR
                                  __________

                     KEITH DEAN VEALE, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 91st District Court
                              Eastland County, Texas
                           Trial Court Cause No. 23040



                     MEMORANDUM OPINION
      The jury convicted Appellant, Keith Dean Veale, of the offense of burglary
of a habitation. The trial court assessed Appellant’s punishment at confinement for
thirty years, pursuant to an agreement, and sentenced him accordingly. In one
issue, Appellant challenges the sufficiency of the evidence to support his
conviction. We affirm.
                              I. The Charged Offense
      Appellant was charged by indictment with the offense of burglary of a
habitation under Section 30.02 of the Texas Penal Code. TEX. PENAL CODE ANN.
§ 30.02 (West 2011). As charged in the indictment, a person commits the offense
of burglary of a habitation if, without the effective consent of the owner, the person
intentionally or knowingly enters a habitation and attempts to commit or commits
the felony offense of assault. See id. § 30.02(a)(3). The offense is a first-degree
felony. Id. § 30.02(d).
      A person commits the offense of assault if he intentionally, knowingly, or
recklessly causes bodily injury to another. Id. § 22.01(a)(1) (West Supp. 2013).
The offense of assault is a felony if the victim is in a dating relationship with the
accused and it is established that the offense is committed by intentionally,
knowingly, or recklessly impeding the normal breathing of the person by blocking
the person’s nose or mouth. Id. § 22.01(b)(2)(B); see also TEX. FAM. CODE ANN.
§ 71.0021(b) (West 2014) (defining “dating relationship” as “a relationship
between individuals who have or have had a continuing relationship of a romantic
or intimate nature”).
                                II. Evidence at Trial
       Georgette Wyatt testified that she began dating Appellant in the fall of
2010. Wyatt and Appellant moved in with each other at Appellant’s mother’s
house until Wyatt purchased a home in the spring of 2011. Wyatt and Appellant
lived together in Wyatt’s home for a little over one year. In June 2012, Wyatt sent
Appellant a letter telling him to move out. After Wyatt sent the letter, she changed
the locks on her house.
      On the date of the offense in December 2012, Wyatt and Appellant were
together; they began the day picking up pecans and talking about their previous
relationship. Later that evening, Wyatt and Appellant returned to Wyatt’s house.
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During supper, the two of them started to discuss their relationship, and the
conversation became unpleasant for Wyatt. Wyatt asked Appellant to leave her
house. At first, Appellant refused to leave, and Wyatt went into her bedroom to lie
down, hoping that Appellant would leave.
      According to Wyatt, Appellant came into the bedroom and told Wyatt that
her house was on fire. Wyatt smelled something burning, so she got up and saw a
pile of newspapers burning in the front room of her house. Wyatt quickly picked
up the burning papers and threw them out the front door. Appellant then told
Wyatt that he was going to paint her house next, and he retrieved a can of green
paint from the front room. Appellant called Wyatt an “evil, rotten bitch.” Wyatt
continued to tell Appellant to leave, but he refused to leave until he had
transportation. At some point, Wyatt took Appellant to his friend’s house.
      Later, around 10:00 or 11:00 p.m., Appellant returned to Wyatt’s house.
Wyatt heard her front gate open and heard Appellant knocking on the front door.
Wyatt did not answer the door because Appellant had already given her a hard time
earlier in the day and because Wyatt did not want to talk to Appellant anymore or
have him at her house. Wyatt testified that she was afraid but did not call 911
because she did not have a phone. After Wyatt did not answer the front door,
Appellant went around the house and tried to open the windows. Wyatt then heard
the doorknob on the back door shaking back and forth, followed by silence. A few
minutes later, while Wyatt was sitting in the front room, Appellant kicked in the
front door. The State admitted a photograph that depicted the broken lock on the
front door that Appellant kicked in. Wyatt testified that the lock was a bolt lock
that went across the door and that, when Appellant kicked the door in, the lock
ripped out of the doorjamb.
      After Appellant kicked the door in, Wyatt ran into her room and tried to shut
the door, but Appellant was already through it. Wyatt stated that Appellant did not
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have permission to be in her home and that she told Appellant to leave more than
once during the confrontation. Wyatt ran and jumped on her bed. Wyatt sat
against the “backboard” of her bed, afraid, and Appellant approached her.
Appellant reached down as though he was going to grab Wyatt but, instead,
grabbed the pillow next to Wyatt, put it over her face, and held her down with it.
      Wyatt testified that she attempted to fight back by scratching Appellant, by
trying to pull his hair, and by hitting him; Wyatt could not breathe and tried
anything she could to get up. Wyatt testified that she felt like she was suffocating
and dying. Eventually, Wyatt quit fighting, and Appellant took the pillow off her
face. Wyatt stated that she felt like she “was having another heart attack.” After
Appellant took the pillow off Wyatt’s face, Appellant looked down at her and then
called an ambulance.      According to Wyatt, Appellant was able to call an
ambulance with a phone that a friend left on the coffee table. Wyatt had not called
911 before because she knew the phone had no minutes left on it, and she did not
know that the phone could be used to make an emergency call even if the minutes
were depleted. When a police officer arrived, Wyatt immediately went outside and
told him what had happened, including the fact that Appellant had tried to kill her.
      On cross-examination, Wyatt stated that the only place where damage to the
door occurred was to the doorjamb; she did not think that there was any damage to
the strike plate on the door. In addition, Wyatt said that, when she left her room
during the initial confrontation to check on the cause for the smell of smoke, the
front room containing the burning newspapers was filled with smoke. Wyatt also
said that, during the initial confrontation, she threatened to call the police if
Appellant did not leave. According to Wyatt, she made such a threat because she
did not know what else to say even though she knew she had no phone to call the
police. When Appellant’s trial counsel asked Wyatt what she did with the burning
newspapers, Wyatt said that she left them outside on her front porch after she
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threw them there. Wyatt indicated that the newspapers burned a large hole in the
cushion of some outdoor furniture on the porch.
      Bobby Lehmann, a former officer with the Ranger Police Department who
was on duty at the time of the offense, testified that he was dispatched to Wyatt’s
residence at approximately 12:40 a.m. Officer Lehmann was responding to a 911
hang-up call. Upon his arrival, Officer Lehmann observed Wyatt and Appellant
standing outside the residence, both walking toward the side gate in Officer
Lehmann’s direction. Wyatt approached Officer Lehmann and told him that she
had been assaulted by Appellant. She stated that Appellant had placed a pillow
over her head and tried to suffocate her. Appellant was standing near them while
Wyatt told Officer Lehmann this, and Appellant did not say or do anything to deny
the allegations.
      When Officer Lehmann questioned him, Appellant told Officer Lehmann
that he had been staying at the residence for a few days and that he had just started
arguing with Wyatt. Appellant told Officer Lehmann that Wyatt had a supposed
heart attack and that he called 911. Officer Lehmann observed several scratches
on both sides of Appellant’s face, which looked like physical scratches with red
marks, along with a little bit of blood. Appellant claimed that he had cut himself
shaving. Officer Lehmann testified that, based on his experience with shaving, it
did not appear at all that Appellant had cut himself with a razor.
      Officer Lehmann then returned to Wyatt, who told him that she and
Appellant had gotten into an argument and that she had asked Appellant to leave
multiple times. Wyatt told Officer Lehmann that Appellant refused to leave but,
instead, tried to smother her with a pillow. The State showed Officer Lehmann the
photograph of the bolt lock in State’s Exhibit No. 1, and Officer Lehmann
indicated that he took the photograph and that it depicted visible damage to the
door strike.
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      After examining the scene and speaking with Wyatt, Officer Lehmann
informed Appellant that he would be placed under arrest. Appellant stood up and
became agitated. Officer Lehmann ordered Appellant three times to turn around,
but Appellant did not comply; an altercation ensued. Officer Lehmann called for
backup, and Appellant physically pushed Officer Lehmann. Officer Lehmann
testified that the physical push was forceful and assaultive. Officer Lehmann then
pepper-sprayed Appellant, and Appellant took off and ran inside the house.
Officer Lehmann drew his weapon and commanded Appellant to stop, but
Appellant then ran out the back door and jumped the neighbor’s fence. The
officers were unable to find him that night. Officer Lehmann testified that, based
on his training and experience, he believed that Appellant was trying to get away
from something that he had done.
      On cross-examination, Officer Lehmann testified that he did not observe any
damage to the door or its frame other than the door strike for the bolt that he had
earlier indicated was damaged. Officer Lehmann did not observe any footprints on
the door. Officer Lehmann did not see any burned newspapers on the front porch,
did not smell any smoke in the house, and did not see a burned cushion on the front
porch. Officer Lehmann said that Wyatt had told him about the fire incident, but
Officer Lehmann did not put the incident into his report because it did not occur
around the time of the alleged burglary and assault. Officer Lehmann took a
picture of the pillow that was allegedly used to suffocate Wyatt, but he did not
inspect the pillow for any signs of bodily fluids. Officer Lehmann said that he did
not observe any physical markings on Wyatt when he questioned her, but
Officer Lehmann said that Wyatt was extremely frightened and was trying to get
away from Appellant. Officer Lehmann also said that Wyatt’s breathing rate was
rather high.


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                                III. Issue Presented
      Appellant contends in his sole issue that the evidence was insufficient to
support his conviction.
                              IV. Standard of Review
      We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of
the evidence 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. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). We defer to the jury’s role as the sole judge of the
witnesses’ credibility and the weight their testimony is afforded. Brooks, 323
S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts
in testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).          When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
                                    V. Analysis
      Appellant asserts that key components of the alleged victim’s testimony
regarding ancillary acts and direct acts by Appellant on the day of the alleged
offense were not corroborated by the testimony of the responding officer.
Specifically, Appellant points to the following four claims made by Wyatt: (1) that
Appellant set fire to newspapers in her front room during the initial confrontation;
(2) that Appellant threatened to paint the house green if Wyatt continued to insist
                                         7
that Appellant leave the house during the initial confrontation; (3) that a chair
cushion on the front porch was burned by the newspapers after Wyatt threw them
out of the house; and (4) that Appellant kicked the door in during the second
confrontation, which led to the charges in this case. According to Appellant, this
lack of evidence calls into question whether Appellant entered the habitation
without Wyatt’s effective consent and whether Appellant committed felony
assault.
      We have reviewed the entire record according to the Jackson standard, and
we conclude that the evidence was sufficient to support Appellant’s conviction for
burglary of a habitation. It was undisputed that Appellant and Wyatt had been in a
“dating relationship.” See FAM. § 71.0021(b). Wyatt’s testimony established that
Appellant forcefully entered her home without consent. Upon Appellant’s entry,
Wyatt told him to leave, but Appellant followed Wyatt into her room and placed a
pillow over Wyatt’s face, covering her nose and mouth. Wyatt testified that she
feared for her life and felt like she was suffocating, could not breathe, and could
have a heart attack. Under these facts, a rational jury could have concluded
beyond a reasonable doubt that Appellant committed all the elements of burglary
of a habitation with the commission of felony assault.       See PENAL §§ 22.01,
30.02(a)(3).
      Although Wyatt’s testimony may have been called into question, her
credibility was an issue for the jury to decide. See Taylor v. State, 279 S.W.3d
818, 822–23 (Tex. App.—Eastland 2008, pet. ref’d). Moreover, many of the facts
that were uncorroborated by Officer Lehmann were not denied outright;
Officer Lehmann merely testified that he did not observe any evidence of a fire, the
presence of green paint, broken pieces of the doorjamb, or footprints on the front
door. Given that many of the facts that were not corroborated by Officer Lehmann
were not directly related to the factual support behind the elements of the offense,
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we cannot conclude that Wyatt’s credibility was so questioned that no rational trier
of fact could have believed her testimony as it related to the elements of the
offense.
       Viewing all the evidence in the light most favorable to the verdict and giving
proper deference to the jury’s credibility determinations, we conclude that a
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. We overrule Appellant’s sole issue.
                                      VI. This Court’s Ruling
       We affirm the judgment of the trial court.




                                                                MIKE WILLSON
                                                                JUSTICE


September 11, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and McCall.1

Bailey, J., not participating.




       1Terry   McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
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