      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-13-00547-CR



                                Richard Cartrell Haynes, Appellant

                                                    v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
        NO. D-1-DC-12-205144, HONORABLE JON N. WISSER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Richard Cartrell Haynes was charged with burglary of a habitation. See Tex. Penal

Code § 30.02(a) (prohibiting crime of burglary), (c)(2) (setting offense level for burglary of habitation).

After a trial, the jury found Haynes guilty of the charged offense. Subsequently, Haynes pleaded

true to 2 felony-enhancement allegations, and the district court imposed a sentence of 30 years’

imprisonment. See id. § 12.42 (elevating permissible punishment range for repeat-felony offenders).

Haynes appeals his conviction, and we will affirm the district court’s judgment of conviction.


                                             DISCUSSION

                On appeal, Haynes contends that the evidence was insufficient to show that the

structure that he entered was a habitation. In particular, he argues that there was no proof that the

structure was adapted “for overnight accommodation of persons.” When making this argument,

Haynes notes that no evidence was introduced showing that the structure had bedrooms, a kitchen,
or household furnishings. Accordingly, he asks this Court to reform his judgment to reflect a

conviction for the lesser-included offense of burglary of a building or of criminal trespass.

                Under the Penal Code, an individual commits burglary “if, without the effective

consent of the owner, the person . . . enters a habitation, or a building (or any portion of a building)

not then open to the public, with intent to commit a felony, theft, or an assault.” Tex. Penal Code

§ 30.02(a)(1). As mentioned above, Haynes does not challenge the sufficiency of the evidence

showing that he entered a structure with the intent to commit theft; on the contrary, he only asserts

that the evidence was insufficient to show that the structure was a habitation. The Penal Code

defines “[h]abitation” as “a structure or vehicle that is adapted for the overnight accommodation of

persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle;

and (B) each structure appurtenant to or connected with the structure or vehicle.” Id. § 30.01(1).

A determination regarding whether a particular structure is suitable for overnight accommodations

involves complex and subjective fact questions, which are well-suited for resolution by juries.

Salazar v. State, 284 S.W.3d 874, 877 (Tex. Crim. App. 2009). When making this determination,

juries may consider “the type of structure,” “its typical use,” and its contents, “including bedding,

electricity, plumbing, or furniture.” Id. The jury may also consider “whether someone was using

the structure . . . as a residence at the time of the offense.” Blankenship v. State, 780 S.W.2d 198,

209 (Tex. Crim. App. 1989) (op. on reh’g).

                In a legal-sufficiency review, appellate courts view the evidence in the light most

favorable to the verdict and 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

(1979). When performing this analysis, a reviewing court must bear in mind that it is the fact-


                                                   2
finder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable

inferences “from basic facts to ultimate facts.” Id. Furthermore, reviewing courts must “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.” Hooper v. State, 214 S.W.3d

9, 16-17 (Tex. Crim. App. 2007). Moreover, reviewing courts presume that conflicting inferences

were resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

               The structure at issue is a home owned by John Waltrip. During the trial, Waltrip

explained that he has lived in the home since 2007 and continued to live in the home after the

incident. Further, he related that although he was not present at the time of the alleged offense

because he spent the night at his girlfriend’s house, he was home the day before. In addition, he

stated that his home had a working alarm system. Further, when describing the damage that had

been done, Waltrip mentioned that his home had a laundry room.

               In addition to the testimony from Waltrip, the State admitted pictures of the

home as exhibits. Those pictures reveal that the structure was a single-family home with a brick

exterior, a roof, a laundry room, an attached garage, and a paved driveway.1 See Jones v. State,


       1
          In his brief, Haynes cites Chandler v. State for the proposition that a structure’s outside
appearance is irrelevant. 743 S.W.2d 736, 738 (Tex. App.—Corpus Christi 1987) (“Chandler I”).
However, we find Haynes’s reliance on this case misplaced. On appeal, that opinion was reversed
by the court of criminal appeals. Chandler v. State, 790 S.W.2d 635 (Tex. Crim. App. 1990).
Moreover, the court of criminal appeals noted that the primary precedent relied on in Chandler I had
recently been overruled and that a new “standard for determining sufficiency of the evidence to show
a structure is a habitation” had been established. Id. at 635 (noting that Jones v. State, 532 S.W.2d
596 (Tex. Crim. App. 1976), was overruled by Blankenship v. State, 780 S.W.2d 198 (Tex. Crim.
App. 1989) (op. on reh’g)); see also Blankenship, 780 S.W.2d at 209 (authorizing consideration
of type of structure “(e.g. house, apartment, condominium . . . )” when deciding if structure is
accommodation).

                                                 3
No. 01-09-00267-CR, 2010 Tex. App. LEXIS 10279, at *15 (Tex. App.—Houston [1st Dist.]

Dec. 30, 2010, no pet.) (mem. op., not designated for publication) (concluding that structure was

habitation after considering, among other evidence, photos showing “that the house was a

fully-enclosed, brick, one-story, single-family dwelling with a roof, a paved driveway, and an

attached garage” and explaining that single-family residences are intended to be used to

accommodate people overnight); cf. Hicks v. State, 204 S.W.3d 505, 507 (Tex. App.—Amarillo

2006, no pet.) (mem. op.) (determining that “minimal evidence cited by” defendant would not

have permitted “a rational factfinder to conclude that . . . [structure] was only a building and not

a habitation” when evidence showed that structure was designed to be lived in, was wired for

electricity, had running water and gas, had kitchen and bathroom, and had appliances and noting

that “no other evidence appears of record suggesting that the structure lacked the status as a

habitation”). Moreover, the pictures seem to depict that the structure was fully enclosed. Further,

the pictures show that the home contained appliances, clothing, a bicycle, tools, and cleaning

supplies. In addition, the photos demonstrate that the home had working electricity because an

exterior light is illuminated in several of the photos. Cf. In re E.P., 963 S.W.2d 191, 192 (Tex.

App.—Austin 1998, no pet.) (concluding that evidence was sufficient to show that vacant unit

was habitation when evidence showed, among other things, that apartment was surrounded by

other units and had running electricity and water). Furthermore, a video from the dashboard camera

of one of the responding officers was admitted as an exhibit, and that video depicts the home in a

residential neighborhood with accompanying bike lanes.2


       2
        As support for his assertion that the evidence was insufficient to support his conviction,
Haynes primarily relies on Moss v. State, 574 S.W.2d 542 (Tex. Crim. App. 1978). However, we

                                                 4
                 In light of all of the evidence summarized above as well as the reasonable inferences

that the fact-finder could have made from that evidence and given that the standard of review for

legal-sufficiency challenges obligates appellate courts to defer to the fact-finder’s resolution of

conflicts in the testimony and to review the evidence in the light most favorable to the verdict, see

Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 16-17, we cannot

conclude that the evidence was legally insufficient to support the jury’s determination that the

structure was a habitation. Accordingly, we overrule Haynes’s issue on appeal.


                                           CONCLUSION

                 Having overruled Haynes’s issue on appeal, we affirm the district court’s judgment

of conviction.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: September 16, 2014

Do Not Publish




find Moss to be distinguishable from the circumstances present in this case. In Moss, the structure
at issue had not been occupied for several months and had no running water. Id. at 544-45. In
addition, there was evidence showing that the structure had no light bulbs and that the “stove and
heaters were not connected.” Id. at 545. Moreover, the owner of the property testified that the items
that were in the house were there “for storage only, and that in order to rent the house she would
have had to move them out and install other furniture and appliances.” Id.

                                                   5
