                                 NO. 12-16-00161-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

STEVEN ARTHUR HOSKIN,                          §      APPEAL FROM THE 369TH
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      ANDERSON COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Appellant, Steven Arthur Hoskin, appeals from his conviction for burglary of a building.
In one issue, Appellant contends the evidence is legally insufficient to support his conviction.
We reverse and render.


                                        BACKGROUND
       Appellant was charged with committing burglary of a building, i.e., a barn. At trial, the
evidence showed that Anita Lamb owned forty-three acres of land across U.S. Highway 84 from
her residence in rural Anderson County. On December 11, 2013, Mrs. Lamb’s neighbor noticed
two men loading items into an old pickup truck parked across the highway from the Lamb
residence. Knowing that the Lambs were not home, the neighbor thought the activity suspicious
and called 9-1-1.
       In response to the neighbor’s call, Sergeant Ryan Toliver of the Anderson County
Sheriff’s Department arrived at the scene. He found Appellant and another man preparing to
leave in a loaded old Dodge pickup. Appellant said that they loaded items that they assumed
were “junk,” which they intended to sell for scrap. The items included (1) two fifty-five gallon
barrels that were once used as burn bins, (2) an air conditioner that the Lambs had removed from
a camper trailer when the unit quit working, and (3) a stainless steel soda cylinder that Mr. Lamb
brought home from his work at the Coca-Cola Company.
       After detaining Appellant and the other man, Sergeant Toliver walked across the railroad
tracks down a path or old driveway that led to “an old barn, maybe, an old shed.” The barn was
in an advanced state of dilapidation and the door had fallen off.
       A jury found Appellant guilty of burglary of a building, and assessed his punishment at
confinement for two years. The jury, finding that Appellant had never been convicted of a
felony, recommended that the court suspend imposition of sentence and place Appellant on
community supervision. The trial court signed a judgment in accordance with the jury’s
recommendation. This appeal followed.
Standard of Review
       In reviewing the sufficiency of the evidence, the appellate court must determine whether,
considering all the evidence in the light most favorable to the verdict, the jury was rationally
justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 l. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Considering the evidence “in the light most favorable to the verdict” requires the
reviewing court to defer to the jury’s determinations regarding the witnesses’ credibility and
weight to be given their testimony. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323
S.W.3d at 899. A court “faced with a record of historical facts that supports conflicting
inferences must presume–even if it does not affirmatively appear in the record–that the trier of
fact resolved any such conflicts in favor of the prosecution. . . .” Jackson, 449 U.S. at 326, 99 S.
Ct. at 2793.
       The sufficiency of the evidence is measured by the elements of the offense as defined by
the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant was tried.” Id.
Applicable Law
       A person commits burglary of a building if, without the owner’s effective consent, the
person enters a building with intent to commit a felony, theft, or an assault. TEX. PENAL CODE
ANN. § 30.02(a)(1) (West 2011). “Building” means any enclosed structure intended for use or



                                                 2
occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. Id.
30.01(2) (West 2011). The structure itself must be of an enclosed character. Day v. State, 534
S.W.2d 681, 683 (Tex. Crim. App. 1976). A structure that is merely enclosed by something, such
as a chain link fence, is not an enclosed structure under the statute. Id.
Discussion
       Appellant contends that the uncontested evidence shows that the structure he was charged
with entering, i.e., the barn, was not a “building” as defined in the penal code because it was not
an enclosed structure. We agree.
       An unoccupied building in need of repair may constitute a “building” as contemplated by
burglary statutes. In Ellett v. State, 607 S.W.2d 545 (Tex. Crim. App. 1980), the court found an
empty hotel to be a “building” within the meaning of the burglary statute. Ellett, 607 S.W.2d at
548. Some windows had been broken out, requiring the owner to have the windows boarded up
to secure the hotel. Id. Additionally, the owner testified that “at all times, (the hotel) was
supposed to have been locked. And securing of it, in a more firm way, was done to keep people
from breaking in.” Id. at 549.
       In Day, the court of criminal appeals held that a concrete block structure with three
permanently open portals for the passage of trucks was not an “enclosed structure” as
contemplated by the burglary statute. Day, 534 S.W.2d at 684-85. The court found that the
cutting and entry through a chain link fence that surrounded the premises on which the structure
stood was not an entry into a “building” in violation of the burglary statute. Id. at 683-84.
       In this case, the uncontested testimony shows that for at least twenty-five or thirty years,
the barn had been as open and unsecured as the structure in Day. According to the record, the
barn stood on the property for over seventy years. The barn door fell off twenty-five or thirty
years before the offense and no effort had been made to replace the door or otherwise secure the
barn against intruders. And unlike the hotel in Ellett, there was no evidence of effort or intent to
secure the barn. Mrs. Lamb testified that she had not been to the barn in “three or four years.”
She described the barn as dilapidated. The photographs in evidence show a structure in such an
advanced state of disrepair as to appear near collapse. The barn’s condition makes it difficult to
believe that it could now be secured. Accordingly, the jury could not reasonably conclude that
the barn was an “enclosed structure” as contemplated by the penal code’s definition of a
“building.” See Day, 534 S.W.2d at 684-85; see also TEX. PENAL CODE ANN. § 30.01(2). For



                                                  3
this reason, viewing the evidence in the light most favorable to the verdict, the jury was not
rationally justified in finding that Appellant committed burglary of a building beyond a
reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d
at 899. Appellant’s sole issue is sustained.


                                                   DISPOSITION
         Having sustained Appellant’s sole issue, we reverse the judgment and render a judgment
of acquittal.


                                                                               BILL BASS
                                                                                Justice



Opinion delivered March 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




                                                          4
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                          MARCH 31, 2017


                                         NO. 12-16-00161-CR


                                  STEVEN ARTHUR HOSKIN,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                               Appeal from the 369th District Court
                   of Anderson County, Texas (Tr.Ct.No. 369CR-15-32,062)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment of the trial court be reversed and a judgment of acquittal be, and the same is,
hereby rendered herein in accordance with the opinion of this court; and that this decision be
certified to the court below for observance.
                   Bill Bass, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
                   sitting by assignment.
