

. 12-09-00226-CR
 
IN THE COURT OF APPEALS 
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
CHRISTOPHER
ROBERT GEAR,           §               APPEAL FROM THE 217TH
APPELLANT
 
V.                                           
§             JUDICIAL DISTRICT COURT OF
 
THE STATE
OF TEXAS,
APPELLEE                                
§               ANGELINA COUNTY, TEXAS
                                                                                             
                                                              
MEMORANDUM
OPINION
Christopher Robert Gear appeals his
conviction for attempted burglary of a habitation.  In two issues, Appellant
argues that the evidence is legally and factually insufficient to support the
verdict.  We reverse and render.
 
Background
Mona Brown was resting at her home after
lunch when she heard what sounded like a door rattling on her house.  Her
husband[1] works at a nearby sawmill,
and she thought he had returned to get a tool, something he did fairly often. 
She dozed again and was again awakened by more noises.  This time it sounded to
her like her husband was inside the house banging around trying to get the
grass trimmer out of the house.  She knew, however, that the noises were not
routine when she heard three loud bangs, one after the other.  This caused her
to get up and go to investigate.   
As she walked to where she expected to see
her husband, Brown was surprised to find that he was not there.  She was also
surprised when she did not to see his truck parked in its customary place in
front of the house.  She did notice, however, that the back room—a room that is
ordinarily quite dark because the windows were covered with dark curtains—was
very brightly lighted.  She went into the room and saw that a window was broken
out.  She went over to the window and came face to face, within six inches,
with Appellant, who was outside of the house.  She thought he was trying to
leap through the window into the house.  She asked Appellant what he was doing,
and he said something like, “I didn’t do it.”  Appellant began walking away,
and Brown called the police.
The police found Appellant walking along the
highway some distance from Brown’s house.  They brought Brown to where they had
detained Appellant, and she identified him as the person she saw outside her
window.  Appellant told her that he had not been trying to break into her
house.  The officer gave Appellant a trespass warning and released him.
An Angelina County grand jury indicted Appellant
for the felony offense of attempted burglary of a habitation.  Appellant waived
a jury trial and pleaded “not guilty” at a bench trial.  The trial court heard
evidence and found Appellant guilty as charged.  Following a sentencing
hearing, the trial court assessed punishment at imprisonment for five years. 
This appeal followed.
 
Sufficiency of the Evidence
In his first and second issues, Appellant
argues that the evidence was insufficient to support the verdict. 
Specifically, he argues that the evidence was insufficient to prove that he
broke the window in Brown’s house with the intent to commit a burglary.  
Applicable Law 
The due process guarantee of the Fourteenth
Amendment requires that a conviction be supported by legally sufficient
evidence.  See Jackson v. Virginia, 443 U.S. 307, 315–16,
99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State,
133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192
S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d).  Evidence is not legally
sufficient if, when viewing the evidence in a light most favorable to the
verdict, no rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.  See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; see also Rollerson v. State, 227
S.W.3d 718, 724 (Tex. Crim. App. 2007).
While legal sufficiency review is all that
is required by the U.S. Constitution, the Texas Court of Criminal Appeals has
determined that the Texas Constitution requires further review of the factual
sufficiency of the evidence.  Clewis v. State, 922 S.W.2d 126,
129B30 (Tex. Crim.
App. 1996).  Factual sufficiency review differs from legal sufficiency review
only slightly.  See Marshall v. State, 210 S.W.3d 618, 625 (Tex.
Crim. App. 2006).  In a factual sufficiency review, we review the evidence
without the light most favorable to the verdict and we are authorized, “albeit
to a very limited degree,” to disagree with the jury’s resolution of contested
factual issues.  See id.; Watson v. State, 204
S.W.3d 404, 414, 417 (Tex. Crim. App. 2006).  In a review of the factual
sufficiency of the evidence, we will conclude that the evidence is insufficient
only if the great weight and preponderance of the evidence contradicts the jury’s
verdict or the verdict is clearly wrong and manifestly unjust.  See Rollerson,
227 S.W.3d at 724; Watson, 204 S.W.3d at 417.
Under either standard, our role is that of
appellate review, and the fact finder is the principal judge of the weight and
credibility of a witness’s testimony.  Wesbrook v. State, 29
S.W.3d 103, 111–12 (Tex. Crim. App. 2000).  The fact finder may choose to
believe all, some, or none of a witness’s testimony.  Sharp v. State,
707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
The sufficiency of the evidence is measured
against the offense as defined by a hypothetically correct jury charge.  See
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  A
hypothetically correct jury 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 is tried.”  Id.
The State was required to prove that
Appellant, with the intent to commit the offense of burglary of a habitation,
did an act that amounted to more than mere preparation which tended but failed
to effect the commission of the intended offense.  See Tex. Penal Code Ann. § 15.01(a)
(Vernon 2003).  As relevant here, a person commits burglary if, without the
effective consent of the owner, he enters a habitation with intent to commit a
felony, theft, or an assault.  Tex.
Penal Code Ann. § 30.02(a)(1) (Vernon 2003).  The indictment alleged
that Appellant broke out a window in Brown’s house with the specific intent to
commit the offense of burglary of a habitation. 
 
Analysis
Appellant testified that he broke out the window
and made the noises that Brown heard.  According to Appellant’s version of
events, he had quit a job earlier that day with a roofing company.  He said
that he took a nap on a couch in the front yard of Brown’s house.  After
sleeping for some time, he awoke and went around to the back of the house where
he relieved himself.  He stated that he then became angry with himself for the
predicament he was in–he had only a dollar or two, had just quit his job, and
had no transportation–and began to punch the side of the house and an adjacent
fence.
He gave a slightly different version of
events to an investigator from the district attorney’s office, telling him that
he accidentally broke the window because he leaned against the window frame as
he was relieving himself, causing the window to break.  Neither of these
explanations fit the course of events that Brown described.  The first rattling
noise she heard was from a side door that had been nailed shut.  The escalated,
louder noises were directed strikes aimed at the window.  It is reasonable to
conclude that Appellant was attempting to gain entry to the house through his persistent
efforts at what looked like points of entry.  Brown’s observation that it
appeared Appellant was attempting to enter the house through the window is also
consistent with his breaking the window for the purpose of gaining entry.  
To be guilty of an attempt, there must be
evidence that the person acted with “the specific intent to commit” the
underlying offense.  See Tex.
Penal Code Ann. § 15.01(a); Laster v. State, 275 S.W.3d
512, 521 (Tex. Crim. App. 2009).  Burglary, the underlying offense here,
requires proof that the person entered a habitation with the intent to commit a
felony, theft, or an assault.  Tex.
Penal Code Ann. § 30.02(a)(1).[2]
At trial, the State did not offer a theory
as to what offense Appellant intended to commit within the house.  The State
did point out that there was “no explanation as to why he would want to enter
the residence for a lawful purpose” and that the trial court could conclude
from his implausible explanation that “he is covering up what his true intent
was.”  On appeal, the State points out that a defendant’s conduct and the
surrounding circumstances may be found to imply intent to commit burglary, but the
State does not explain how the evidence in this case allows the inference that
Appellant intended to commit a felony, theft, or an assault within the house.
We begin by pointing out that the burglary statute
does not condemn all entries that are not for lawful reasons.  All unlawful
entries are condemned by the statute prohibiting criminal trespass.  See Tex. Penal Code Ann. § 30.05(a) (Vernon
Supp. 2009).  Burglary includes only a subset of those entries, those made with
the intent to commit a felony, theft, or an assault.  Tex. Penal Code Ann. § 30.02(a)(1).  We agree with the State
that it appears, and the trial court believed, that Appellant was not being
truthful as to what he was doing that day at the Browns’ house.  But while the
implausibility of his story suggests that it is not true, it does not lead to
the conclusion, even in a light most favorable to the verdict, that he intended
to commit some felony, to steal something, or to assault a person within the house.[3] 

As the State points out, courts have been
quite deferential when allowing inferences as to a person’s intent when trying
to break into a building.  In Richardson v. State, 973 S.W.2d
384, 387 (Tex. App.–Dallas 1998, no pet.), the court held that the finder of
fact could infer intent to commit an attempted burglary where a person saw two
men pull up to a neighbor’s house and the defendant was apprehended with a
screwdriver that matched fresh pry marks on the door.  In Roane v. State,
959 S.W.2d 387, 388–89 (Tex. App.–Houston [14th Dist.] 1998, pet. ref’d), the
court held the evidence was legally sufficient to support an inference of
intent to commit burglary based on the fact that the appellant had been wearing
latex gloves and had been chipping at the window of a home that was later found
to be lacking a screen and missing caulking about the window.  Id.
at 388.  In Roach v. State, 635 S.W.2d 169, 171 (Tex. App.–San
Antonio 1982, no pet.),[4] a plurality of the court
found it sufficient to infer intent to commit a theft within the structure when
the defendant hid upon being alerted to the police presence, his knife was
found at the scene, which may have been used to force a door open, and the
attempted entry occurred at night.[5] 
In Smith v. State, No. 01-01-00272-CR, 2002 Tex. App. LEXIS 4786,
at *14–15 (Tex. App.–Houston [1st Dist.] July 3, 2002, pet. ref’d) (mem. op.,
not designated for publication), the court held that intent could be inferred
because the burglary occurred at night and because the defendant had burglary
tools, was out of breath, sweating, and appeared to be nervous.  In Bothwell
v. State, No. 12-08-00047-CR, 2009 Tex. App. LEXIS 2163, at *11–12
(Tex. App.–Tyler Mar. 31, 2009, pet. ref’d) (mem. op., not designated for
publication), this court held that a burglary inference was supported by
evidence that the appellant appeared to be engaged in a concerted effort to
break into the house, he had an implement that appeared to have been used to
break a window, and he made two trips to the house.  
Finally, though not a burglary case, in Laster
v. State, the court of criminal appeals held that the evidence was
sufficient to conclude that the defendant intended to kidnap, and therefore to
secrete away, a child because he “grabbed and then pulled [her] toward him,” “continued
to pull [her] after her brother came to her aid,” and did not release her until
a “driver honked the car’s horn.”  See Laster v. State,
275 S.W.3d 512, 522 (Tex. Crim. App. 2009).  Instrumental to the court’s
conclusion that the defendant intended to hold or secrete the child in a place
where she was unlikely to be found was evidence that the defendant did not
simply “grab at” the child, but “pulled her away.”  Id. at 523. 
The court concluded that this evidence supported the jury’s verdict that the
defendant intended to secrete or hold the child.  Id.  The court
reasoned that even when there are other plausible inferences supported by the
evidence, it is within the province of the factfinder to choose which inference
is most reasonable so long as the verdict itself is supported by a reasonable
inference.  Id. 
In this case, there is no reasonable
inference to support the conclusion that Appellant intended to commit a felony,
theft, or an assault within the house.  Indeed, the State has not identified,
either at trial or on appeal, what evidence supports the conclusion that
Appellant intended to commit a felony, theft, or an assault within the house.  It
is reasonable to conclude that Appellant pushed at the nailed–shut door and
broke the window because he was trying to get into the house.  But among the various
things he could have done inside, there is no evidence to support a conclusion
that he intended to commit a felony, theft, or an assault.  He testified that
he thought the house was abandoned, and that he could not believe that anyone
lived there.  This assertion allows the inference that he did not intend to
commit a theft within the house or that he did not think it was a dwelling, but
the trial court was not required to believe his assertion. 
It is true, as the State points out, that Appellant
fled the scene.  But at that point, Appellant had already committed a crime by
breaking the window.  His flight was not more consistent with having committed
a burglary than it was with committing criminal mischief, or with sheepishly
retreating after waking a woman in the middle of the day.  Appellant had no
burglary tools, the events did not occur at night, he did not have a vehicle
with which to spirit away stolen items, there was no evidence of an organized
or planned effort to steal from the home, he had no accomplices ready to assist
him, and there was no evidence that he was casing or otherwise scouting out the
home.  In short, the kind of additional facts present in attempted burglary
cases that allowed the inference that it is a felony, theft, or an assault that
the person intended to commit within the building are not present in this case.[6]  
There is the matter of Appellant’s denials. 
He denied he was trying to break into the house.  Furthermore, he had
previously been convicted of robbery, theft, and possession of hash oil.  But,
as we have said, there is sufficient evidence to conclude that he was
attempting to break into the house.  His denial of being the person who broke
the window is consistent with his intending to commit a felony, theft, or an assault
within the house.  But as with his flight, his unconvincing story allows the
conclusion that it is not true but not that he intended to commit a felony,
theft, or an assault within the house.   
This is an unusual case in which there is no
evidence that allows any inference about what Appellant intended to do within
the house.  By a process of elimination, a rational finder of fact could
conclude that Appellant’s intentions were not honorable.  But we read Laster
to mean that while the factfinder’s prerogative to choose among plausible and
rational readings of the evidence is beyond our review, there must still be
some evidence to prove the essential elements of the offense and a verdict must
be supported by a reasonable inference.  In that case, the fact that the
defendant did not release the child until a horn was honked allowed the
conclusion that he intended to commit a kidnapping.  Id. at 523. 
There is not such evidence in this case.  
In light of the standard of review, and the Laster
decision, the evidence that allows the finder of fact to rationally pick one
inference when several are available may be very slight.  But the burglary
statute requires a very specific kind of intent.  Because of the lack of any
evidence in this case that leads to the conclusion that Appellant intended to
commit a felony, theft, or an assault inside the house, we hold that the
evidence is legally insufficient to support the verdict.  We sustain
Appellant’s first issue.  Because we sustain his first issue, we do not reach
the issue of the factual sufficiency of the evidence. 
 
Disposition
Having sustained Appellant’s first issue, we
reverse Appellant’s conviction and render a
judgment of acquittal.
 
                                                                                                Brian Hoyle
                                                                                       
           Justice
 
 
 
Opinion
delivered May 12, 2010.
Panel
consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
 
 
(DO NOT PUBLISH)




[1]
For ease of narration, we refer to Brown by her married name.  She and her
husband were not married at the time of the incident but did marry prior to
trial.  


[2]
There was confusion at trial as to the State’s burden of proof.  The court
asked whether the State had to prove the “mens rea or the intent of [] what the
underlying offense was . . . .”  The State responded in the negative. 
Appellant argued that the State did have to prove that he acted with the
specific intent to commit burglary, which included “all the elements of
burglary of a habitation.”  On appeal, the State does not challenge Appellant’s
assertion that it was required to prove Appellant had the intent to commit a
felony, theft, or an assault within the house.
 


[3]
The burglary statute also covers those who commit a felony, theft, or an
assault after breaking into a structure as well as those who remain concealed
within a building with the intent to commit a felony, theft, or assault.  See
Tex. Penal Code Ann. §
30.02(a)(2), (a)(3).  Appellant was not charged with violating those parts of
the statute.
 


[4]
The court of criminal appeals decision in Flournoy v. State, 668
S.W.2d 380, 383 (Tex. Crim. App. 1984), is often cited for the proposition that
intent to commit burglary can be inferred in a case where the defendant tried
several times to get into a mobile home before being encouraged to leave by an
armed homeowner.  While the court in that case did hold that the evidence in
that case was legally sufficient to prove each essential element of the
offense, the decision is tightly focused on the question of whether the
defendant’s actions in that case went beyond mere preparation, and not on the
question of intent.  Id. at 381–83. 
 


[5]
As a tool of appellate review, courts have historically employed a presumption
of intent to commit theft when there is a nonconsensual nighttime entry.  See
Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) (en
banc)


[6]
Although the State did not present this fact as part of an argument, it is also
true that Appellant testified that he did not have very much money.  We are
reluctant to make arguments for parties; but we do not conclude, under the
facts of this case, that Appellant’s lack of money allows an inference that he
intended to commit a theft.  His testimony about a lack of funds came in the
context of a discussion about his general frustration with having walked off
his job and with being hot, sweaty, and tired.  Without more, the fact that he
did not have much money in his pocket does not allow the inference that he
intended to commit a theft inside the house.


