                                     NO. 07-02-0357-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                       JUNE 9, 2003

                           ______________________________


                              TERRY BOLTON, APPELLANT

                                            V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2002-438843; HONORABLE JIM BOB DARNELL, JUDGE

                           _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION1


      Following a plea of not guilty, appellant was convicted by a jury of attempted

burglary of a habitation with intent to commit sexual assault, and punishment was

assessed by the court at 20 years confinement. Presenting a sole issue, appellant asserts


      1
          Tex. R. App. P. 47.2(a).
the evidence is insufficient to support his conviction. Based upon the rationale expressed

herein, we affirm, but reform the judgment and reverse and remand for a new trial on

punishment.


          At approximately 10:00 p.m. on January 6, 2002, Ramiro Reyna was walking from

his home to his mother’s home situated one block over when he observed a “suspicious

person” walking through complainant’s backyard. A street light on the corner lot where

complainant’s house was located provided some light. Reyna knew that complainant and

her mother were the only residents. He observed the person, later identified as appellant,

“just peeping” through the kitchen window and later another window. However, Reyna also

testified that an 18-wheeler was parked on the curb to the side of the house that night and

from where he was standing initially, the truck was between him and appellant and he was

only able to observe the back of appellant’s legs. As Reyna proceeded down the block

undetected by appellant, he again observed appellant “peeping” through a window holding

his right hand next to his face. Reyna was unable to see appellant’s left hand. Once

Reyna reached his mother’s house, four houses down from complainant’s, he called the

police.


          Reyna testified he was inside his mother’s house for three to five minutes after

calling the police. He then waited in his mother’s backyard where he could still observe

complainant’s backyard through other neighbors’ gates. Although he could not see

appellant, he believed he was still standing by a window in complainant’s backyard until he


                                             2
noticed him return to the backyard from a business parking lot located across the alley from

complainant’s house. Reyna’s mother waited for the police in her front yard and, upon

Officer Jordan’s arrival, alerted him to appellant’s location. Reyna observed Jordan’s patrol

car drive down the alley where Jordan apprehended appellant behind a neighbor’s house

adjacent to complainant’s.


       Complainant testified she turned on her bath water, undressed in the bathroom, and

took her clothes to the laundry room. She then walked to her mother’s room to answer the

telephone before returning to the bathroom to take a bath. According to complainant, she

bathed for approximately an hour.


       Officer Jordan testified he was dispatched to investigate a burglary in progress.

According to his testimony, he drove down the alley with the headlights and parking lights

turned off and observed appellant exiting complainant’s backyard and walking toward his

patrol car. Jordan was of the opinion that appellant was unaware of his presence and was

walking at a normal pace while looking back in the direction of complainant’s house. When

Jordan was close enough, he turned on his headlights, stopped the patrol car and exited,

and instructed appellant to get down on the ground. After handcuffing appellant, Jordan

conducted a protective frisk and discovered an open jar of petroleum jelly in appellant’s

pocket. The officer also noticed that appellant was wearing camouflage pants that were

unbuttoned and unzipped.




                                             3
       Appellant’s sole contention is that the evidence is legally and factually insufficient

to support his conviction for attempted burglary of a habitation with intent to commit sexual

assault. We agree. When both the legal and factual sufficiency of the evidence are

challenged, we must first determine whether the evidence is legally sufficient to support the

verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a fundamental rule

of criminal law that one cannot be convicted of a crime unless it is shown beyond a

reasonable doubt that the defendant committed each element of the alleged offense. U.S.

Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2003); Tex. Pen.

Code Ann. § 2.01 (Vernon 1994). In conducting a legal sufficiency review, we examine the

verdict, after viewing the evidence in the light most favorable to the prosecution, to

determine whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App.

1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.

2000). As an appellate court, we may not sit as a thirteenth juror, but must uphold the

jury's verdict unless it is irrational or unsupported by more than a “mere modicum” of

evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988). The standard of

review is the same for direct and circumstantial evidence cases. Butler v. State, 769

S.W.2d 234, 238 (Tex.Cr.App. 1989), overruled on other grounds, Geesa, 820 S.W.2d at

161.




                                             4
       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis, 922 S.W.2d at 133. As an appellate court, we view all

the evidence without the prism of “in the light most favorable to the prosecution” and set

aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to

be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). It is

the exclusive province of the jury to determine the credibility of the witnesses and the

weight to be given their testimony, and unless the record clearly demonstrates a different

result is appropriate, we must defer to the jury’s determination. Id. at 8.


       Before determining whether the evidence is legally sufficient to sustain the

conviction, we must review the essential elements the State was required to prove. A

person attempts an offense if he commits an act amounting to more than mere preparation

that tends but fails to effect the commission of the offense intended. Tex. Pen. Code Ann.

§ 15.01(a) (Vernon 2003). Burglary requires a person to enter a habitation without the

effective consent of the owner with intent to commit a felony, theft, or an assault. §

30.02(a)(1). A person commits sexual assault if he intentionally or knowingly:


       (A) causes the penetration of the anus or female sexual organ of another
       person by any means, without that person’s consent;
       (B) causes the penetration of the mouth of another person by the sexual
       organ of the actor, without that person’s consent; or
       (C) causes the sexual organ of another person, without that person’s
       consent, to contact or penetrate the mouth, anus, or sexual organ of another
       person, including the actor . . . .



                                             5
§ 22.011(a)(1). Intent may be inferred from an accused’s acts, words, and conduct.

DeLeon v. State, 77 S.W.3d 300, 312 (Tex.App.–Austin 2001, pet. ref’d). In circumstantial

evidence cases it is not necessary that every fact point directly and independently to the

accused's guilt; rather, it is enough if the conclusion is warranted by the combined and

cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183,

186 (Tex.Cr.App. 1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 222

(1994); Armstrong v. State, 958 S.W.2d 278, 283 (Tex.App.--Amarillo 1997, pet. ref'd).


      The State established appellant was in complainant’s backyard without permission

and was peeping through more than one window. The arresting officer testified appellant

possessed an open jar of petroleum jelly in his pocket and that his camouflage pants were

unbuttoned and unzipped.       Complainant and her mother testified the window to

complainant’s room showed new damage because the bottom right corner of the screen

was pulled up, and the latch hook was missing. Complainant also testified she had seen

appellant before when she and her friends were walking to a nearby grocery store and

noticed appellant following them. She explained that when she turned back to look he

stopped and she did not see him again. However, the State did not establish a time frame

between that occurrence and the incident on January 6.


      Officer Jordan testified he was not trained in crime scene investigation and that

other officers present were also inexperienced in crime scene investigation. He estimated

he was at the scene for 30 minutes; however, no photographs, fingerprints, footprints, or


                                            6
measurements were taken. He further testified neither he nor his fellow officers found any

weapons or tools on appellant.


       Complainant testified that while she was bathing she did not hear anything outside

the window. She further testified she did not see appellant at any of her windows nor

elsewhere, nor did she witness him attempt to pull the screen away from the window.

According to complainant, she inspected her window every other day when taking out the

trash and acknowledged the window was locked on the night of the incident and very

difficult to open.


       The defense established the window screen was old and dark from rust, and the

window frame was broken. No evidence was presented that appellant pulled up the screen

or caused any damage to the window.2 In fact, the only eye witness, Reyna, testified on

direct and redirect examination as follows:


       Q. Whenever you saw [defendant] there at that point, what was he doing?
       A. Just peeping through the window.
                                           ***
       Q. And as you went by that location, what did you believe the Defendant to
       be doing?
       A. Just peeking through the window.


       2
        See Perez v. State, 695 S.W.2d 51, 54 (Tex.App.–Corpus Christi 1985, no pet.)
(reversing a conviction for attempted burglary and ordering an acquittal because there was
no evidence to show beyond a reasonable doubt that the defendant was attempting to
enter a building where he used a metal rod to pry brackets that supported an air
conditioning unit built into the rear wall of a building).

                                              7
       Referencing the record, in its brief the State notes appellant was “clothed in

camouflage pants, which are typically worn when one does not want to be seen.” However

the portion of the record referenced is Officer Jordan’s following testimony:


      Q. For instance, do you remember what kind of pants this suspect was
      wearing?
      A. I do remember that. He was wearing camouflage BDU’s, I believe.


There is no evidence by Officer Jordan or any other witness establishing that camouflage

pants are “worn when one does not want to be seen.” Moreover, the State did not argue

to the jury, as it does on appeal, that they could reasonably deduce that camouflage

clothing is worn by persons who do not want to be seen.


       The State also contends it was reasonable for a jury to conclude appellant had a

“sexual interest” in complainant because he had previously followed her while she was

walking to a grocery store. However, no evidence was presented of any acts, conduct, or

words by appellant to indicate he was sexually interested in complainant.


       In support of its final contention that the evidence is sufficient to support appellant’s

conviction, the State relies on the open jar of petroleum jelly found in appellant’s pocket

to prove his intent to commit sexual assault. The State cites six cases in which petroleum

jelly was used during sexual crimes; however, all six cases are distinguishable:


       Sledge v. State, 953 S.W.2d 253 (Tex.Cr.App. 1997)–a conviction for
       aggravated sexual assault and indecency with a child in which the dissenting


                                               8
       opinion discusses extraneous offenses, specifically an instance where the
       complainant recalled that defendant rubbed her anus with vaseline and
       penetrated her;
       Jones v. State, 582 S.W.2d 129 (Tex.Cr.App. 1979)–a murder conviction
       resulting from injuries sustained during a violent sexual assault ;
       Mulvehill v. State, 130 Tex.Crim. 335, 395 S.W.2d 647 (1965)–a conviction
       for indecent exposure to a minor where the defendant used vaseline to
       grease his penis and place it in the minor’s “behind”;
       Gulley v. State, 94 S.W.2d 461 (Tex.Cr.App. 1936)–a rape conviction
       involving an underage female who rode with the defendant in his automobile
       and testified that she consented to engage in sexual relations if the
       defendant wore a “rubber” and she placed vaseline on her female organ;
       Ford v. State, 908 S.W.2d 32 (Tex.App.–Fort Worth 1995, pet. ref’d)–a
       conviction for aggravated sexual assault of an eight-year-old boy whom the
       defendant instructed to get vaseline for the defendant to put on his own
       penis before penetrating the boy anally; and
       Gaudette v. State, 713 S.W.2d 206 (Tex.App.–Tyler 1986, pet. ref’d)–a
       conviction for aggravated sexual assault and aggravated kidnapping of a
       minor where a jar of vaseline was found in the defendant’s jacket, but without
       any mention that the vaseline was used in the commission of the sexual
       assault.


Five of the cases relied upon by the State involve sexual acts against minors and the sixth

case was a prosecution for murder resulting from a heinous rape from which the victim

sustained fatal injuries. Moreover, no evidence was introduced regarding the amount of

petroleum jelly in the jar, if any. The State does not cite, and we have been unable to find

any cases holding that possession of a jar of petroleum jelly under the circumstances

presented here is sufficient to support a conviction for attempted sexual assault, and we

decline to so hold.3


       3
        Cf. Johnson v. State, 633 S.W.2d 888, 889 (Tex.Cr.App. 1982) (holding evidence
sufficient for attempted rape where the defendant held complainant from behind, pinned

                                             9
       Additionally, when Officer Jordan first observed appellant, he was leaving

complainant’s backyard and walking down the alley at a normal pace. In summing up the

evidence, the State argued in its closing:


       He comes to her house in camouflage, walks through her fence back and
       forth, back and forth, looking in windows until he finds the exact window that
       he wants to stand at, the window he has the best view. Hand up, looking in
       the window, the other one down by his pants.
       He gratifies himself, what he wants to do, satisfies himself.


       The record does not establish appellant committed an act amounting to more than

mere preparation with the intention to enter complainant’s house to commit sexual assault.

Proof of a culpable mental state generally relies upon circumstantial evidence and may be

inferred from the circumstances under which the prohibited act occurred. Dillon v. State,

574 S.W.2d 92, 94 (Tex.Cr.App. 1978); Steinbach v. State, 979 S.W.2d 836, 842

(Tex.App.–Austin 1998, pet. ref’d). However, the circumstances in the underlying case do

not establish that through his acts, words, or conduct, appellant had the requisite intent to


her arms down, grabbed her private parts, put his hand under her shirt, and grabbed her
breast while saying “fuck” in a sensuous manner); Hackbarth v. State, 617 S.W.2d 944,
945 (Tex.Cr.App. 1981) (affirming an attempted rape conviction where the defendant
entered a laundromat and ripped at complainant’s shirt, asked her to take her clothes off
while his partially erect penis was protruding from his unzipped pants, and attempted to
undo her pants); Walker v. State, 859 S.W.2d 566, 569 (Tex.App.–Waco 1993, pet. ref’d)
(holding evidence sufficient for attempted sexual assault because the defendant’s actions
constituted more than mere preparation where he ripped the front of complainant’s dress,
beat her, dragged her into an alley, and touched her in “a personal place”); Lindsey v.
State, 764 S.W.2d 376, 377 (Tex.App.–Texarkana 1989, no pet.) (affirming a conviction
for attempted sexual assault where complainant’s stepfather, the defendant, fondled
complainant’s breasts, stroked her vaginal area over her clothing, told her she was sexy,
stated he “ought to f— her right then,” and threatened to kill her if she told anyone).

                                             10
enter complainant’s house to commit sexual assault. Thus, viewing the foregoing evidence

in the light most favorable to the prosecution, we conclude it is insufficient for a rational

trier of fact to have found beyond a reasonable doubt the elements of the charged offense.

Accordingly, we hold the evidence is legally insufficient to support a conviction for

attempted burglary of a habitation with intent to commit sexual assault. Having done so,

we need not conduct a factual sufficiency review. Appellant’s sole issue is sustained.


       We must now determine whether the evidence is sufficient to support a conviction

for the lesser included offense of criminal trespass. See Collier v. State, 999 S.W.2d 779,

782 (Tex.Cr.App. 1999) (en banc) (holding that a court of appeals may reform a judgment

of conviction to reflect conviction of a lesser included offense only if (1) the court finds that

the evidence is insufficient to support conviction of the charged offense but sufficient to

support conviction of the lesser included offense, and (2) the jury was instructed on the

lesser included offense). A person commits criminal trespass if he remains on property

. . . without the effective consent of the owner and had notice that the entry was forbidden.

§ 30.05(a)(1). Notice means fencing or other enclosure obviously designed to exclude

intruders . . . . § 30.05(b)(2)(B).


       Reyna testified complainant’s backyard was enclosed by a fence, and he observed

appellant walking back and forth in the yard. Officer Jordan testified he observed appellant

exiting that same backyard. Complainant and her mother both testified that appellant did

not have permission to be in their yard or on their property. We conclude the evidence was


                                               11
sufficient to show appellant had notice that entry onto complainant’s property was

forbidden and that he remained there without their consent. Thus, the evidence is

sufficient to support a conviction for criminal trespass.


       Accordingly, the judgment for attempted burglary of a habitation with intent to

commit sexual assault is reformed to reflect conviction for the lesser included offense of

criminal trespass and, as reformed, is affirmed; that portion of the judgment assessing

punishment for the second degree felony of attempted burglary of a habitation with intent

to commit sexual assault is reversed and the cause is remanded to the trial court for a new

punishment hearing for conviction of the Class B misdemeanor of criminal trespass.


                                          Don H. Reavis
                                            Justice



Do not publish.




                                             12
