Opinion filed April 2, 2009




                                             In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-08-00004-CR
                                         __________

                         JORGE LUIS BANUELOS, Appellant

                                                V.

                                STATE OF TEXAS, Appellee



                              On Appeal from the 32nd District Court

                                     Mitchell County, Texas

                                   Trial Court Cause No. 6983A


                              MEMORANDUM OPINION

       The jury convicted Jorge Luis Banuelos of burglary of a habitation and sentenced him to
confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of
fifty years. Appellant challenges his conviction in four issues. We affirm.
                                        Background Facts
       The indictment alleged that appellant entered Tabitha Gonzales’s habitation with the intent
to commit theft. Appellant’s girlfriend, Anna Maria Diaz, lived in Apartment No. 12 of the
Colorado City Apartments, and Gonzales lived in an apartment located across the hall. Diaz testified
that a group of her friends, including appellant, had assembled in the hallway between the two
apartments. Diaz further testified that appellant kicked down the door of Gonzales’s apartment. She
additionally testified that appellant entered Gonzales’s apartment after kicking the door down. Diaz
retreated to the bathroom of her apartment upon witnessing this event because she was upset. After
exiting her bathroom, Diaz observed items removed from Gonzales’s apartment in her apartment.
She observed appellant inside of her apartment at this time along with some of her friends.
       Appellant testified on his own behalf during the guilt/innocence phase of the trial. He denied
kicking in the door of Gonzales’s apartment or entering it. He testified that he informed Diaz at the
time that the events occurred that he wanted to break up with her and go back with his wife.
Appellant testified that Diaz ran to her bathroom because she was upset with him and that he never
left her apartment when the others entered Gonzales’s apartment.
                                     Sufficiency of the Evidence
       Appellant challenges the sufficiency of the evidence in his first three issues. We assume that
he challenges both the legal and factual sufficiency of the evidence in the absence of a specification
by appellant of the nature of his evidentiary challenge. In order to determine if the evidence is
legally sufficient, we must review all 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 (1979); Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To
determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a
neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part
Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11
(Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v.
State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether
the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust
or whether the verdict is against the great weight and preponderance of the conflicting evidence.
Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the




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sole judge of the weight and credibility of the witnesses’ testimony. TEX . CODE CRIM . PROC. ANN .
art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).
       In his first issue, appellant contends that there was insufficient evidence to establish that
Gonzales’s apartment constituted a habitation under the Penal Code. A “habitation” is a structure
that is adapted for the overnight accommodation of persons and includes each structure appurtenant
to or connected with the structure. TEX . PENAL CODE ANN . § 30.01(1)(B) (Vernon 2003). In
Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1988), the Texas Court of Criminal
Appeals explained that “adapted” means “suitable.” Factors to be considered in determining whether
a structure is suitable for the overnight accommodation of persons include the following:
(1) whether the structure was being used as a residence at the time of the trespass; (2) whether the
structure “contained bedding, furniture, utilities, or other belongings common to a residential
structure”; and (3) whether the structure was of such character that it was likely intended to
accommodate persons overnight. Id. Gonzales testified that she lived in the apartment at the time
the burglary occurred and that she continued to reside there at the time of trial. This evidence
overwhelmingly supports the jury’s determination that Gonzales’s apartment constituted a habitation.
Appellant’s first issue is overruled.
       Appellant asserts in his second issue that there is insufficient evidence to establish that the
property was appropriated without Gonzales’s effective consent. There are three distinct ways in
which one may commit the offense of burglary under TEX . PENAL CODE ANN . § 30.02 (Vernon
2003). DeVaughn v. State, 749 S.W.2d 62, 64 (Tex. Crim. App. 1988). Under Section 30.02(a)(1),
the offense may be committed by intentionally or knowingly entering a building or habitation not
then open to the public, without the effective consent of the owner and with the intent to commit a
felony or theft. Id. Under Section 30.02(a)(2), one may commit burglary by intentionally or
knowingly remaining concealed in a building or habitation, without the effective consent of the
owner and with the intent to commit a felony or theft. Id. at 65. Under Section 30.02(a)(3), one may
commit burglary by intentionally and knowingly entering a building or habitation, without the
effective consent of the owner, and committing or attempting to commit a felony or theft. Id.
       The State charged appellant with burglary solely under Section 30.02(a)(1) by alleging that
he entered Gonzales’s habitation with the intent to commit theft. To prove burglary under


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Section 30.02(a)(1), the intent to commit theft must exist at the moment of entry. Id. The offense
is complete upon entry; a completed theft is unnecessary. Id. Under the applicable law and the
nature of the offense alleged, the State was not required to prove appellant stole property from
Gonzales’s apartment. To the contrary, the State only had to show that appellant entered Gonzales’s
apartment with the intent to commit theft. Accordingly, the State was not required to establish a
completed theft in order to establish that appellant committed burglary. Gonzales’s lack of consent
to the appropriation of her property was not an issue before the jury with respect to the alleged
offense.1 Thus, appellant’s evidentiary challenge to the consent issue is without merit because it
does not address an essential element of the charged offense. Appellant’s second issue is overruled.
          In his third issue, appellant contends that there is insufficient evidence to establish that he
possessed an intent to commit theft at the time of entry. He argues that the State was required to
establish that he actually committed the subsequent theft in order to establish that he possessed an
intent to commit theft at the time of entry. We disagree. As set forth above, the State was not
required to prove a completed theft in order to obtain a conviction under Section 30.02(a)(1).
          Intent, as an essential element of burglary, must be proved by the State beyond a reasonable
doubt and may not be left simply to speculation and surmise. See McGee v. State, 923 S.W.2d 605,
608 (Tex. App.—Houston [1st Dist.] 1995, no pet.). The gist of burglary is entry with the requisite
intent. Alexander v. State, 873 S.W.2d 793, 795 (Tex. App.—Beaumont 1994, pet. ref’d). The jury
is exclusively empowered to determine the issue of intent in a burglary trial. McGee, 923 S.W.2d
at 608. Thus, intent as alleged is a fact issue for the jury. Moore v. State, 54 S.W.3d 529, 539 (Tex.
App.—Fort Worth 2001, pet. ref’d).
          Proof of a culpable mental state generally relies upon circumstantial evidence. Dillon v.
State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). Since mental culpability is of such a nature that
it must be inferred from circumstances under which the prohibited act occurred, the trier of fact may
infer intent from any facts in evidence that tend to prove the existence of such intent. Skillern v.
State, 890 S.W.2d 849, 880 (Tex. App.—Austin 1994, pet. ref’d). The jury may infer intent from
the acts, words, and conduct of the accused, Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App.

          1
            Based upon Gonzales’s testimony at trial detailing the nature of property stolen from her apartment, we conclude that a
rational trier of fact could have readily concluded that the property was taken without her effective consent had that been an issue
for the jury to determine.

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1982); Moore, 54 S.W.3d at 539, and all circumstances surrounding the acts and conduct engaged
in by the accused. See Parramore v. State, 853 S.W.2d 741, 745 (Tex. App.—Corpus Christi 1993,
pet. ref’d).
        The fact of breaking and entering a habitation or building is always strong evidence of some
bad or evil intent in a prosecution for burglary. See Perkins v. State, 489 S.W.2d 917, 919 (Tex.
Crim. App. 1973); Greer v. State, 437 S.W.2d 558, 560 (Tex. Crim. App. 1969). In addition to
evidence that appellant kicked down the door of Gonzales’s apartment and entered it, there is
evidence that property was subsequently removed from Gonzales’s apartment and placed in Diaz’s
apartment. This evidence served as a basis for permitting the jury to infer that appellant had the
intent to commit theft when he entered Gonzales’s apartment. Furthermore, the State offered into
evidence a letter written by appellant to Diaz while he was incarcerated awaiting trial. Appellant
stated as follows in the letter:
        As far as my case goes, they indicted me on nothing but statements. So if you know
        who snitched on me you better tell them to sign an affidavit cuz I’m thinkin about
        takin it to trial, unless they come at me with probation or a two year sentence which
        is tha minimum they could give me. But if I do take it to trial I can get my hands on
        those statements and all I gotta do is hand them names over to my people. And
        they’ll be down here stickin niggas in they trunk and off they go to the promise land
        never to be seen again.

Appellant’s instruction to Diaz that she “better tell [his accusers] to sign an affidavit,” coupled with
his threat of retaliation against his accusers, constitutes an attempt to suppress the testimony of
witnesses. As such, it evokes a “consciousness of guilt.” See Torres v. State, 794 S.W.2d 596,
598-99 (Tex. App.—Austin 1990, no pet.), where the court stated:
        “[C]onsciousness of guilt” [evidence] is perhaps one of the strongest kinds of
        evidence of guilt. It is consequently a well accepted principle that any conduct on the
        part of a person accused of a crime subsequent to its commission, which indicates a
        “consciousness of guilt” may be received as a circumstance tending to prove that he
        committed the act with which he is charged (emphasis added).

        Based upon these items of evidence, we conclude that a rational trier of fact could have found
that appellant entered Gonzales’s apartment with the intent to commit theft beyond a reasonable
doubt. From a factual sufficiency standpoint, the evidence supporting the verdict is not so weak that
the verdict is clearly wrong and manifestly unjust. Furthermore, appellant’s self-serving, contrary


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testimony did not cause the verdict to be against the great weight and preponderance of the evidence.
Appellant’s third issue is overruled.
       Appellant’s fourth issue pertains to the trial court’s jury charge. Appellant contends that the
charge was fundamentally defective because it did not require the State to prove that appellant
appropriated Gonzales’s property without her effective consent. We disagree. As set forth in our
discussion of appellant’s second and third issues, the State was not required to prove a completed
theft in order to obtain a conviction under Section 30.02(a)(1). The charge was not defective because
the State was not required to prove that appellant appropriated any property from Gonzales without
her effective consent. Appellant’s fourth issue is overruled.
                                        This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                                TERRY McCALL
                                                                JUSTICE


April 2, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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