                                   CONCURRING OPINION

                                         No. 04-09-00220-CR

                                     Jose Hechavarria VALDEZ,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2006-CR-9978
                         Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice
Concurring opinion by: Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 7, 2010

           Although I agree the judgment of the trial court should be affirmed, I disagree with the

majority’s analysis because I believe appellant has waived any right to have his legal and factual

sufficiency points of error reviewed.

           The indictment charged Valdez with a single count of burglary contained in two paragraphs.

Paragraph A alleged appellant entered the habitation with intent to commit the felony of aggravated

assault. See TEX . PENAL CODE ANN . § 30.02(a)(1) (Vernon 2003). Paragraph B alleged appellant

entered the habitation and attempted to commit and committed the felony of aggravated assault. See

id. § 30.02(a)(3). The theories were charged in the alternative in a single application paragraph in

the jury charge. Appellant attacks only the sufficiency of the evidence to support the conviction

under the theory that he actually committed a felony.
Concurring Opinion                                                                      04-09-00220-CR



        The indictment authorizes conviction for the offense of burglary under three different theories

— entry with intent to commit a felony, entry and an attempt to commit a felony, and entry and the

commission of a felony. All theories charge the same offense. See DeVaughn v. State, 749 S.W.2d

62, 64 (Tex. Crim. App. 1988). If alternate theories of committing the same offense are submitted

to the jury in the disjunctive, it is proper for the jury to return a general verdict if the evidence is

sufficient to support a verdict under any submitted theory. Sorto v. State, 173 S.W.3d 469, 472 (Tex.

Crim. App. 2005). Because Valdez challenges the legal and factual sufficiency of only one of the

theories submitted to the jury (entry and commission of a felony), this court should not consider his

sufficiency points. See Gokey v. State, Nos. 04-08-00214-CR & 04-08-00215-CR, — WL — (Tex.

App.–San Antonio Mar. 3, 2010, no pet. h.) (holding defendant who failed to challenge sufficiency

of evidence under both theories of aggravated assault submitted disjunctively to the jury waived

sufficiency point of error); Gonzalez Soto v. State, 267 S.W.3d 327, 333 (Tex. App.—Corpus

Christi-Edinburg 2008, no pet.) (declining to render judgment of acquittal after State conceded

evidence was legally insufficient to support one of three theories submitted to jury because jury

returned general verdict of guilty and defendant did not challenge sufficiency of evidence as to

remaining two theories); Randall v. State, 232 S.W.3d 285, 288 (Tex. App.—Beaumont 2007, pet.

ref’d.) (overruling defendant’s claim of legal insufficiency because defendant did not challenge all

theories submitted to jury); Henderson v. State, 77 S.W.3d 321, 327 (Tex. App.—Fort Worth 2002,

no pet.) (same).

                                                        Steven C. Hilbig, Justice




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