Affirmed and Memorandum Opinion filed October 25, 2011.




                                               In The

                         Fourteenth Court of Appeals

                                       NO. 14-10-00846-CR

                      LEBRANDON TORNARD VICTOR, Appellant

                                                  V.

                              THE STATE OF TEXAS, Appellee

                          On Appeal from the 405th District Court
                                 Galveston County, Texas
                             Trial Court Cause No. 09CR0028



                            MEMORANDUM OPINION

       Appellant Lebrandon Tornard Victor appeals the sufficiency of the evidence
supporting his jury conviction for burglary of a habitation. We affirm.

       Police responding to a 9-1-1 call about a home invasion and robbery in progress
arrested Victor and three other men. Victor came out of the house carrying a firearm and
an officer immediately stopped him. Told three times to drop his weapon, Victor finally
complied and was apprehended. Police also apprehended the other men, and they have
each pleaded guilty. Victor was indicted for burglary1 and was the only one to go to trial.

       1
         Though the police responded to a call about a robbery in progress, the State charged Victor not
with robbery, but burglary. Compare Tex. Pen. Code § 29.02–.03 (robbery and aggravated robbery) with
Tex. Pen. Code § 30.02 (burglary).
       Victor testified he had nothing to do with the burglary. He admitted to knowing
the other three men but claimed he was at the scene of the crime only because he had
driven them there to pick up some drugs. He told the jury that he dropped off the three
men at the house, parked down the street, followed the men to the house, and waited
outside. After 30–45 minutes, he retrieved a firearm from his car, returned to the house,
and knocked on the door. At that point, he heard the police officer order him to drop the
gun.

       The eight family members inside the house when it was burglarized collectively
told a different story. They were awoken in the middle of the night by a crash at the front
door and men yelling, in English and Spanish, ―Police, Police!‖ One victim, who had
been sleeping next to his wife, looked outside and saw a man standing there but no police
cars. Two men, one identified as Victor, kicked down the couple’s bedroom door and
fired a gun, demanding money and drugs.

       A mother and her daughter were sleeping in another room and woke up when they
heard a loud noise. The mother testified that Victor was one of two men who came into
the room, taped her hands behind her back, and demanded money. The daughter also
testified that Victor was inside the house, though she could not remember what exactly he
had done.

       Because of a language mix-up,2 the men thought the family was hiding drugs in
the garage. Two men, one of them identified as Victor, took one of the victims to the
garage to look for drugs. When they returned without finding any drugs or money, the
intruders became increasingly violent, knocking holes in the walls and threatening to kill
the family. According to two family members, Victor was aiming his gun at one victim’s
head when another intruder shouted, ―The police, the police!‖ The four men then
scattered.
       2
          One of the intruders mentioned a ―bird‖ and demanded one from the family. One of the victims
said there were birds in the garage. An officer testified that ―bird‖ is used in drug slang to mean a
kilogram of cocaine, but the victim was referring to the family’s two pet parakeets.
                                                  2
       Victor argues that his conviction should be overturned because the victims’
eyewitness testimony is unreliable and there is no physical evidence placing him inside
the house during the burglary. He contends that the evidence against him is insufficient
because, as a matter of law, it establishes reasonable doubt.

       A majority of judges on the Court of Criminal Appeals has concluded that the
Jackson v. Virginia3 legal-sufficiency standard is the only standard a court reviewing a
criminal case should apply in determining whether the evidence is sufficient to support
each element that the State is required to prove beyond a reasonable doubt. Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (Hervey, J., joined by
Keller, P.J., Keasler, and Cochran, J.J.); id. at 926 (Cochran, J., concurring, joined by
Womack, J.) (agreeing with the plurality conclusion). Accordingly, we ask only if the
evidence is legally sufficient to sustain a verdict of guilty beyond a reasonable doubt. See
id. at 912 (plurality op.); see also Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d).

       In a legal-sufficiency case, we examine all the evidence in the light most favorable
to the verdict to determine whether a 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 (1979). This standard of review applies to cases involving both direct and
circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Although we consider everything presented at trial, we do not substitute our judgment
regarding the weight and credibility of the evidence for that of the fact finder. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We presume the jury resolved
conflicting inferences in favor of the verdict, and defer to that determination. Clayton,
235 S.W.3d at 778. We also 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.

       3
           443 U.S. 307 (1979).
                                             3
       To obtain a conviction for burglary of a habitation, the State must prove, beyond a
reasonable doubt, that the accused entered a habitation without the effective consent of
the owner and then committed or attempted to commit a felony, theft, or assault. Tex.
Penal Code § 30.02(a)(3). The State must prove beyond a reasonable doubt that the
defendant is the person who committed the charged offense. Wiggins v. State, 255
S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.) (citing Miller v. State, 667
S.W.2d 773, 775 (Tex. Crim. App. 1984)). An individual can be charged as a party to an
offense and can be held criminally responsible for the conduct of another when that
individual acts in concert with another person in committing the offense. Tex. Penal Code
§§ 7.01–7.02. Circumstantial evidence alone can be sufficient to establish guilt. Guevara
v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Furthermore, an individual can be
guilty of burglary of a habitation even though he does not personally enter the burglarized
premises if he is acting together with another in the commission of the offense. Powell v.
State, 194 S.W.3d 503, 506–07 (Tex. Crim. App. 2006).

       Victor argues that the evidence is insufficient to support his conviction on two
grounds: It fails to show that he actually participated in the burglary, and it fails to show
that he is criminally responsible, under the law of parties, for the burglary committed by
the other men. He relies on minor inconsistencies in the victims’ testimony and a lack of
physical evidence linking him to the crime, but he fails to point out any comparable
Texas cases in which the evidence was found to be insufficient.

       Victor correctly notes that each of the six witnesses gave slightly different
testimony about the events in question, and he highlights some academic criticism of
eyewitness testimony that characterizes such testimony as inherently unreliable. He asks
us to hold that ―shaky eyewitness testimony conclusively establishes a reasonable doubt.‖
We decline to do so.

       The testimony of a single eyewitness can be enough to support a conviction.
Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). The jury alone decides

                                             4
whether to believe eyewitness testimony, and the jury alone resolves any conflicts or
inconsistencies in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App.
1998); Orsag, 312 S.W.3d at 115. Likewise, the jury alone weighs the evidence, and it
may find guilt without physical evidence linking the accused to the crime. Harmon v.
State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

       Two victims testified that Victor came uninvited into their rooms in the dead of
night, and two victims testified that Victor was aiming a gun at another victim when the
police arrived. On these facts alone, a rational jury could find that Victor had entered a
habitation without the effective consent of the owner and then committed or attempted to
commit a felony, theft, or assault. See Tex. Penal Code § 30.02(a)(3); Mosley, 983
S.W.2d at 254. We presume the jury did so find, and we defer to that determination.
Clayton, 235 S.W.3d at 778.

       Having found the evidence legally sufficient to support a finding that Victor
actually committed burglary of a habitation, we need not examine his responsibility for
the acts of the other men.

                                          ***

For the foregoing reasons, we affirm.




                                         /s/       Jeffrey V. Brown
                                                   Justice


Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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