Opinion issued April 20, 2017




                                    In The

                            Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-16-00197-CR
                          ———————————
                   LAMOND JAMES FRANK, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 230th District Court
                          Harris County, Texas
                      Trial Court Case No. 1470036


                        MEMORANDUM OPINION

     The trial court convicted appellant, Lamond James Frank, of burglary of a

habitation with the intent to commit theft.1 Appellant pleaded true to two




1
     See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
enhancement paragraphs and agreed to twenty-five years’ confinement in lieu of

having the trial court assess his punishment.

      In three points of error, appellant argues that the evidence was insufficient to

support his conviction because the State failed to prove that he entered the home

without effective consent of the owner or that he committed a theft; and he asserts

that the trial court erred in admitting a recording of the 9-1-1 call made by the

complainant, as it contained impermissible hearsay statements. We conclude that

the evidence was sufficient to enable a reasonable factfinder to find beyond a

reasonable doubt that appellant entered the home without effective consent and

with the intent to commit theft and that the 9-1-1 call conveyed a present sense

impression, and, thus, the trial court did not abuse its discretion in admitting it.

Accordingly, we affirm.

                                   Background

      At appellant’s trial for burglary of a habitation with intent to commit theft,

the complainant, Nicole Griffiths, testified regarding the events of the day the

offense occurred. She testified that she left work around 3:00 p.m. and returned to

the apartment that she and her roommate, Kevin Harvey, leased together. As she

sat down at her table, she noticed that her patio door was open. At first, she

believed that door had been left open by the construction crew that was working in

her apartment and the one next door to repair damage caused by flooding.


                                          2
However, she then saw appellant jump over her fence and enter her apartment.

Griffiths testified that she knew appellant was friends with Harvey and that the two

had plans to leave on a trip together that same day. However, she was surprised to

see him coming over the fence into her patio area, and she testified that she had not

given appellant permission to enter her apartment.

      Griffiths asked appellant why he was there, and he seemed “surprised” that

she was there. He started walking backward toward the patio, and he told her that

he was looking for Harvey. He then jumped back over the fence. Griffiths thought

his behavior was odd because she knew that Harvey’s and appellant’s flight for the

trip was scheduled to leave around 3:00 p.m. She believed that appellant would

know that Harvey would be at the airport by that time of the afternoon.

      Griffiths immediately followed appellant and looked over the fence, where

she observed appellant’s truck “backed up near [her] fence line stuck in the mud.”

She observed the rug from her living room and a wooden pallet, also previously

located in her home, under appellant’s truck. Appellant told her that he was using

the items in an attempt to get his truck unstuck.

      Griffiths was also able to observe the contents of the truck. She saw a

television in the backseat of his truck, and she asked appellant if it was hers

because she had noticed that her television was missing as she followed appellant

through the apartment to the patio. She also noticed that the bed of appellant’s


                                          3
truck contained a blue dehumidifier that previously had been placed in her

apartment by the construction crew. Griffiths asked appellant to identify the brand

of the television “so that [she] could verify that it was not [hers].” Appellant

refused to identify the television, so Griffiths told him that she was going to come

around the fence. She got in her car and drove around the apartment complex to the

meadow behind her fence where appellant’s truck was stuck. As she parked her car

in that area, she called 9-1-1.

      The State sought to admit a recording of Griffiths’ 9-1-1 call, and appellant

objected on hearsay grounds. The trial court overruled appellant’s objection and

admitted the 9-1-1 tape into evidence. In the tape, Griffiths reported that the

television was missing, and she expressed her suspicion that appellant had stolen it.

      While she was on the phone with 9-1-1, she asked appellant to show her the

backseat of the truck. When he opened the door, the television she had seen from

her backyard was no longer in the truck. She also observed that the blue

dehumidifier that had been in the back of appellant’s truck had been moved onto

her patio. Griffiths, who testified that she “had been talking to 911,” also spoke to

the construction crew regarding the dehumidifier and then asked appellant where

he had put her television. Griffiths testified that appellant denied knowing anything

about the television and denied that there had ever been a television in the truck.




                                          4
      At that point, she asked appellant, who had still been trying to get his truck

unstuck, to stay in the area until the police could arrive and “sort this out.” The

police arrived approximately fifteen minutes later. An officer found her television

“right there in the bushes” near appellant’s truck. Using the box her television had

come in, Griffiths and the police compared the serial numbers and determined that

the television in the bushes was Griffiths’ television, which had been in her

apartment when she left for work that morning.

      The police officer who responded to the call, Officer H. Morales, testified

that he received a call about “a suspicious event” involving “someone’s pickup

truck stuck in a field [behind the] martial arts studio” located near Griffiths’

apartment. Appellant told Officer Morales that he was there visiting Harvey and

that Harvey had given him permission to go inside the apartment. Officer Morales

also spoke with Griffiths, who told him that her television was missing. Officer

Morales then discovered a television “about 25 feet from where [appellant’s] truck

was parked.” Officer Morales stated that he did not find anything belonging to

Griffiths inside appellant’s truck.

      Appellant testified on his own behalf. He stated that on the day of the

burglary, he had planned to take a trip with Harvey. When Harvey failed to show at

their agreed meeting place, appellant decided to go check Harvey’s apartment.

When appellant arrived at the apartment, he could not pull into the driveway or


                                         5
park in the parking spot because there was construction equipment in the way, so

he drove around to the back of the apartment. He testified that he initially yelled

over the fence, and when he received no answer, he went over the fence and

walked up to the patio door and yelled into the house from there. No one answered,

and he did not see anyone in the apartment, so he returned to his truck. Once he

discovered that his truck was stuck in the mud, he used some wood slats and a rug

that he had found in the area by the fence to try to get his truck unstuck.

      Appellant jumped back over the fence to go get more wood to place under

his truck’s tires and was confronted by Griffiths, who eventually accused him of

taking her television. Appellant told Griffiths he did not have her television and

allowed her to look in his truck, and Griffiths proceeded to call the police.

Appellant denied taking the television out of the apartment and denied that he went

to the apartment with the intent to steal anything. The State asked appellant

whether Harvey had given him permission to go inside the apartment on that

particular day, and appellant testified that Harvey had not given him permission to

enter, stating that he had not spoken with Harvey at all that day.

      The trial court found appellant guilty of burglary of a habitation. Appellant

entered into an agreement with the State as to punishment. This appeal followed.




                                           6
                            Sufficiency of the Evidence

      In his first two points of error, appellant argues that the evidence supporting

his conviction is insufficient to demonstrate that he entered the home without the

owner’s consent or that he committed a theft.

A.    Standard of Review

      In conducting a legal sufficiency review, we view all of the evidence in the

light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Lucio v.

State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We defer to the factfinder to

resolve conflicts, weigh the evidence, and draw reasonable inferences. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Id.

      A person commits the offense of burglary of a habitation if, without the

effective consent of the owner, the person “enters a habitation or a

building . . . with intent to commit a felony, theft, or an assault.” TEX. PENAL CODE

ANN. § 30.02(a)(1); Morgan v. State, 501 S.W.3d 84, 90 (Tex. Crim. App. 2016).




                                           7
B.    Effective Consent of Owner

      In his first point of error, appellant argues that the State failed to prove that

he lacked effective consent from the owner. We disagree.

      “Effective consent is defined as assent in fact, whether express or apparent,

and includes assent by a person legally authorized to act for the owner.” Mims v.

State, 434 S.W.3d 265, 273 (Tex. App.—Houston [1st Dist.] 2014, no pet.); see

TEX. PENAL CODE ANN. §§ 1.07(a)(11), (19), 31.01(3) (West 2016). An “owner” is

a person who has possession of a property or a greater right to possession of a

property than the actor. TEX. PENAL CODE ANN. § 1.07(a)(35)(A); Morgan, 501

S.W.3d at 91–92. Whether a defendant had effective consent to enter “must be

measured at the time of the accused’s alleged criminal act.” Morgan, 501 S.W.3d

at 92 (holding that boyfriend who previously had access to property nevertheless

entered without effective consent when property owner’s testimony “made it clear

that, at the time of the offense, she and [defendant] had been arguing [and she] had

locked him out of the apartment”).

      Here, Griffiths, whose name was on the lease for the apartment, was an

“owner” as that term is defined in the Penal Code. See TEX. PENAL CODE ANN.

§ 1.07(a)(35)(A); Morgan, 501 S.W.3d at 91–92. She testified that she had not

given appellant permission to enter her apartment. See Morgan, 501 S.W.3d at 92

(testimony of property owner that she did not give permission to enter habitation is


                                          8
“sufficient to establish the absence of effective consent”) (quoting Ellett v. State,

607 S.W.2d 545, 550 (Tex. Crim. App. [Panel Op.] 1980)).

      Appellant argues that he had been permitted to enter the apartment on

previous occasions, and he cites Villanueva v. State to support his contention. See

711 S.W.2d 739, 740 (Tex. App.—San Antonio 1986, pet. ref’d) (determining that

evidence was insufficient to prove beyond reasonable doubt that Villanueva had

entered habitation without effective consent because his “testimony that he entered

the house with [the owner’s son’s] consent was not contradicted”). However, in

considering the sufficiency of the evidence of lack of consent, we must measure

the giving or removing of effective consent to enter at the time of the alleged

criminal act. See Morgan, 501 S.W.3d at 92; see also Rangel v. State, 179 S.W.3d

64, 69 (Tex. App.—San Antonio 2005, pet. ref’d) (finding sufficient evidence of

lack of consent where appellant had previously had access to residence, but owner

testified that accused was not given permission to enter on day in question).

Griffiths testified that she did not give appellant permission to enter on the day of

the offense, and appellant himself testified that Harvey had not given him

permission to enter the apartment on the day of the offense. Cf. Villanueva, 711

S.W.2d at 740 (citing Villanueva’s uncontradicted testimony that he had consent of

owner’s son at time he entered habitation).

      We overrule appellant’s first point of error.


                                          9
C.    Intent to Commit Theft

      In his second point of error, appellant argues that the evidence is insufficient

to establish that he committed a theft. However, a completed theft is not an

element of burglary; rather, the State was required to prove appellant’s entry into

the apartment without consent and with the intent to commit a theft. See TEX.

PENAL CODE ANN. § 30.02(a)(1); Morgan, 501 S.W.3d at 90; see also TEX. PENAL

CODE ANN. § 31.03(a) (West Supp. 2016) (providing that person commits theft if

he unlawfully appropriates property with intent to deprive owner of property). “A

person charged with burglary under Section 30.02(a)(1) is guilty of that offense the

moment that he crosses the threshold of a habitation without consent and with the

intent to commit the underlying [offense].” Langs v. State, 183 S.W.3d 680, 686

(Tex. Crim. App. 2006). Intent can be inferred from the acts, words, and conduct

of the accused. Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014).

      Here, Griffiths testified that she saw appellant jump over her fence and enter

her apartment. She confronted him, he seemed “surprised” to see her, and he

retreated back over the fence. Griffiths looked over the fence and saw items from

her apartment in and around appellant’s truck, including a rug, a blue dehumidifier,

and a television. By the time she drove around the fence to the place where

appellant’s truck was stuck, the television was gone and the dehumidifier had been

moved onto her patio. At that point appellant denied that he ever had a television in


                                         10
his truck. Officer Morales subsequently found the television in the weeds

approximately twenty-five feet from appellant’s truck, Griffiths was able to

confirm that the television belonged to her, and she testified that it had been in her

apartment when she left for work earlier that day.

      Based on this evidence of appellant’s acts, words, and conduct, the trial

court, acting as the factfinder, could have drawn a reasonable inference that

appellant entered Griffiths’ apartment with the intent to deprive her of property.

See Ex parte Weinstein, 421 S.W.3d at 668 (intent may be inferred); Hooper, 214

S.W.3d at 13 (factfinder may draw reasonable inferences). Contrary to appellant’s

assertion, for there to be sufficient evidence of the intent it was not necessary that

Griffiths knew immediately upon observing the television in appellant’s truck that

it was hers. See Hooper, 214 S.W.3d at 13. Nor was it necessary that the State

prove appellant’s possession of the television to support his conviction for

burglary. See Langs, 183 S.W.3d at 686 (holding that offense of burglary is

completed when accused crosses threshold of habitation without consent and with

intent to commit underlying offense).

      We overrule appellant’s second point of error.

                               Admission of Evidence

      In his third point of error, appellant argues that the trial court abused its

discretion in admitting a recording of Griffiths’ 9-1-1 call.


                                          11
A.    Standard of Review

      We review a trial court’s ruling on the admission or exclusion of evidence

for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009,

pet. dism’d). If the trial court’s evidentiary ruling is reasonably supported by the

record and correct on any theory of applicable law, we will uphold the decision. De

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Tarley v. State, 420

S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).

B.    Admission of 9-1-1 Call

      Appellant argues that the recording of the 9-1-1 call contained improper

hearsay and, thus, the trial court abused its discretion in admitting the recording.

      Hearsay is a statement, other than one made by the declarant while testifying

at trial, offered into evidence to prove the truth of the matter asserted. TEX. R.

EVID. 801(d). It is generally inadmissible unless a statute or the Rules of Evidence

provide a specific exception permitting its admission. TEX. R. EVID. 802. Rule

803(1) provides an exception for a present sense impression. TEX. R. EVID. 803(1).

A present sense impression is a statement describing or explaining an event or

condition made while the declarant was perceiving the event or condition, or

immediately thereafter. Id. Under this exception, “the contemporaneity of the

statement with the event that it describes eliminates all danger of faulty memory


                                          12
and virtually all danger of insincerity.” Fischer v. State, 252 S.W.3d 375, 379

(Tex. Crim. App. 2008). The risk of falsehood is minimized because the statement

is instinctive, not deliberate. Id. at 381.

       Appellant mischaracterizes the evidence in arguing that, in the 9-1-1 call,

Griffiths asked “the police to meet her in the parking lot of a nearby business, not

at the scene” and that she “recounted events from the past as opposed to reporting

events as they were occurring.” Griffiths testified that she made the 9-1-1 call in

the midst of her confrontation with appellant, immediately after she had driven

around to the back side of her apartment where appellant had parked his truck. She

testified that, while she was on the phone with 9-1-1, she was discussing her

missing television with appellant and discussing the dehumidifier with the nearby

construction crew. Thus, in her 9-1-1 call, she described events as she was

perceiving them or immediately thereafter, and the trial court did not abuse its

discretion in admitting the recording. See TEX. R. EVID. 803(1); Fischer, 252

S.W.3d at 379.

       We overrule appellant’s third point of error.




                                              13
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Bland, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           14
