
NO. 07-04-0322-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 23, 2004

______________________________


TOMMY HEATH, JR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 45,316-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
	Following the trial court's order of revocation of community supervision and
reformation of sentence, on October 14, 2003, appellant Tommy Heath, Jr. was sentenced
to nine years confinement for robbery.  Appellant timely filed a motion for new trial. 
However, his notice of appeal was not filed until May 24, 2004.  We dismiss for want of
jurisdiction.  
	When a timely motion for new trial is filed, a notice of appeal is due to be filed with
the trial court clerk within 90 days after the day sentence is imposed.  Tex. R. App. P.
26.2(a)(2).  The Rules of Appellate Procedure provide for a 15-day extension in which to
file the notice if it is accompanied by a motion for extension of time.  See Tex. R. App. P.
26.3.  This Court is without jurisdiction to address the merits of an appeal and can take no
action other than to dismiss an appeal without a timely filed notice of appeal.  See Slaton
v. State, 981 S.W.2d 208, 210 (Tex.Cr.App. 1998).
	Appellant's sentence was imposed on October 14, 2003, and following his timely
motion for new trial, the deadline in which to file his notice of appeal was extended to
January 12, 2004.  The notice filed on May 24, 2004, is beyond the deadline, including the
15-day extension period, and thus, does not invoke our jurisdiction.
	Accordingly, the purported appeal is dismissed for want of jurisdiction. (1)
						Don H. Reavis
						    Justice

Do not publish.
1. Appellant may have recourse by filing a post-conviction writ of habeas corpus
returnable to the Court of Criminal Appeals for consideration of an out-of-time appeal.  Tex.
Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004).


"DATE">AUGUST 19, 2008
______________________________

GABRIEL GIL MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

NO. CR-07A-001; HONORABLE ROLAND SAUL, JUDGE
_______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          Appellant, Gabriel Gil Martinez, was convicted of burglary of a habitation with intent
to commit assault. The jury found the enhancement paragraph true and sentenced
appellant to confinement for a term of five years in the Institutional Division of the Texas
Department of Criminal Justice.  By one issue, appellant contends that the evidence was
legally insufficient to support the judgment.  We affirm.
 
Factual Background
          Valerie Gomez resided at 237 Avenue J in Hereford, Texas.  She lived with her
father in the home that belonged to her father.
  On October 22, 2006, Jessica Cano was
at Gomez’s residence.  Cano was either appellant’s common-law wife or his girlfriend. 
Cano had moved her personal property from appellant’s residence a few days before the
incident in question.  On the evening in question, Gomez and Cano were at the Gomez
residence with two men.  During the earlier part of the evening, appellant had talked to
Cano on the telephone.  As a result of the conversation, appellant appeared at the Gomez
residence requesting the keys to the car that Cano was driving.  Gomez testified that
appellant was not allowed in the home because she was afraid there would be trouble. 
Gomez got the keys and gave them to appellant.  Within an hour or so, appellant appeared
again at the home of Gomez requesting the key to the house he had shared with Cano. 
Again, he was not allowed to come into the Gomez home.  Gomez obtained the key and
gave it to appellant.  Sometime near midnight of the same evening, appellant drove to a
vacant lot behind the Gomez home and parked his car.  Appellant went to the rear of the
house and looked in through a kitchen window.  Appellant observed Cano and a male, later
identified as Martin Rendon, holding hands, embracing, and kissing.  Appellant knocked
loudly on the back door and proceeded to kick the door at least twice.  The door was
secured by two boards that had been nailed over the door to prevent the door from being
opened.  Failing to gain entry at the rear, appellant went around the house toward the front
door.  As appellant went around the house, a second male in the house, Anthony
Ontiveros, went out the front door to investigate and around the house on the side opposite
appellant.  The testimony was in conflict as to whether Oniveros shut the front door behind
him.  Appellant entered the house without knocking and proceeded to the kitchen where
he assaulted Rendon.  When appellant entered the kitchen, Cano fled to another portion
of the house.  After striking and kicking Rendon, appellant searched the house for Cano,
finding her in a bedroom closet.  Appellant attempted to pull Cano from the closet and, in
doing so, pulled her wig off of her head.  Gomez proceeded to call 911 and appellant left
the scene.  
          The police arrived, took the information, and had the witnesses come to the police
station to give statements.  The following day, appellant contacted a detective with the
Hereford police and made arrangements to come in and give a statement.  On the next
day, appellant appeared and gave a voluntary statement after being warned of his
constitutional rights.  The statement was introduced at trial.  The jury ultimately convicted
appellant and this appeal followed, wherein appellant contends that the evidence was
legally insufficient to prove he entered the habitation without the effective consent of the
owner.
Legal Sufficiency
          In assessing the legal sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact 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, 61 L.Ed.2d 560 (1979); Ross v. State, 133
S.W.3d 618, 620 (Tex.Crim.App. 2004).  In conducting a legal sufficiency review, an
appellate court may not sit as a thirteenth juror, but rather 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.Crim.App. 1988).
          In discussing the application of the standard of review for legal insufficiency, the
Texas Court of Criminal Appeals set forth some guidelines in Clayton v. State that we find
instructive in the instant case.  Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.
2007).  This standard of review applicable to a legal sufficiency challenge accounts for the
jury’s duty to resolve conflicts in the testimony, weigh the evidence, and draw reasonable
inferences from the basic facts to the ultimate facts.  Id. Therefore, in analyzing the legal
sufficiency of the evidence, we determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.  Id.  In our review, we consider all the
evidence without deference to whether it was properly or improperly admitted.  Id. 
Because we are to view the evidence in the light most favorable to the verdict, when the
record supports conflicting inferences, we presume that the fact finder resolved the
conflicts in favor of the verdict and defer to their determination.  Id.  Finally, circumstantial
evidence is as probative as direct evidence in proving an actor’s guilt and alone can be
sufficient to establish guilt.  Id.
          In order to establish appellant’s guilt, the State was required to prove that the
appellant, without the effective consent of the owner, entered a habitation with the intent
to commit the offense of assault.  See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).
 
The State alleged that Valerie Gomez was the owner of the Gomez house for purposes of
the indictment.  Owner is defined as the person who has title to the property, possession
of the property, whether lawful of not, or a greater right to possession of the property than
the actor.  See § 1.07(35)(A).
          In applying the foregoing law to the facts, we note that Gomez was living in her
father’s home and no one has challenged her actual authority to determine who had the
right to enter the Gomez home on the date in question.  Further, the testimony
demonstrated that she did not allow appellant in the home on the two earlier visits.  In each
of the prior instances, appellant knocked and waited for the door to be answered.  From
this, the jury could easily infer that appellant knew he did not have consent to enter the
home as he pleased.  Additionally, Gomez’s testimony demonstrated that she feared a
confrontation between appellant and Cano if appellant was allowed to enter the house. 
Cano testified that Gomez’s father did not allow appellant in the home.  Against this
evidence, appellant testified that he had been in the house before to visit Gomez’s
children, who were his nephew and niece.  Appellant did admit that those visits were with
his brother, Gomez’s former husband and the father of the children.  Appellant’s entry into
the home at the time of the assault was preceded by, what the jury could have inferred, an
attempt to break into the house through the back door.  After being unable to gain entrance
via the barred back door, appellant ran around to the front and immediately entered the
house.  Finally, appellant makes much of the fact that he says the front door was open
when he came in.  However, this testimony was also in conflict.  Ontiveros testified that he
shut the door.  Further, the fact that the door may have been opened does not mean entry
was with consent.  See Johnson v. State, 664 S.W.2d 420, 422 (Tex.App.–Amarillo 1983,
no pet.).  It was up to the jury to listen to the evidence and to make the final determination. 
Clayton, 235 S.W.3d at 778.  Based upon the record before us, we cannot say that the jury
acted irrationally in deciding these issues against appellant.  Therefore, we conclude that
the evidence was legally sufficient.
Conclusion
          Having determined that the evidence was legally sufficient, we affirm the trial court’s
judgment.
            
                                                                           Mackey K. Hancock
                                                                                    Justice



Do not publish.  
