Opinion issued June 17, 2014




                                      In The
                               Court of Appeals
                                     For The
                          First District of Texas
                          ————————————
                            NO. 01-13-00255-CR
                          ———————————

                        DANTE COLEMAN, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Case No. 1246997


                          MEMORANDUM OPINION
      A jury found Appellant guilty of the second-degree felony offense of

burglary of a habitation.1 The trial court assessed Appellant’s sentence at 15 years




1
      See TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2011).
in prison. On appeal, Appellant presents one issue, asserting that the evidence is

insufficient to support the judgment of conviction.

          We affirm.

                                Background Summary

          Resa Castillo, her husband, and two adult step-children lived in a home

located on Sikes Road. On the morning of December 2, 2009, all four of them left

the house for work, leaving no one at home.

          Around noon that same day, the Castillos’ neighbor, P. Dupuis, was driving

home from a doctor’s appointment. Dupuis was on a street near her home when

she stopped to allow another car to pass. She glanced at the driver, and he glanced

at her.

          Dupuis continued to drive toward her home. When she approached the

Castillos’ home, Dupuis noticed a man that she did not recognize standing near the

side of the Castillos’ house. Dupuis later identified the man as Appellant. Dupuis

thought Appellant looked suspicious because she did not recognize him as

someone she had seen at the Castillos’ home.

          Dupuis slowed down her car and noticed that Appellant was facing the

Castillos’ house. At first, Dupuis thought he was urinating on the side of the

house. But then, Dupuis saw Appellant raise his hands and look into a window of

the home. As Dupuis drove by the Castillos’ house, Appellant turned and looked



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at Dupuis, giving her a good view of Appellant’s face. Dupuis then saw Appellant

walk toward the back the Castillos’ home. Dupuis pulled into her own driveway

and could no longer see Appellant.

      Dupuis sat in her driveway for two or three minutes, considering whether to

call police to report the suspicious activity. She then saw Appellant running and

heard the tires of a car squeal as it turned the corner on her street. The car quickly

pulled into the driveway of the Castillos’ house. By this point, Dupuis had gotten

out of her truck and had walked to the street. She saw Appellant open the back

door to the car. Dupuis could not see whether Appellant had anything in his hands

when he opened the car’s back door. Dupuis then saw Appellant get into the front

passenger seat of the car. As the vehicle drove by her, Dupuis noticed that it was

the same vehicle and the same driver that she had seen earlier at the intersection.

      After the car left, Dupuis went to the Castillos’ home. She knocked on the

door but no one answered.

      Resa Castillo’s step-son, Jesus Castillo, was the first person home that

evening. He noticed that a window next to the back door had been broken. Jesus

also noticed that golf clubs next to window had been tipped over. It appeared to

Jesus that someone had climbed through the broken window, knocking over the

golf clubs. Jesus noticed that the DVD player was missing from the living room.




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He then drove to the closest pawn shop about one-and-a-half miles away. There,

he saw the family’s DVD player.

        Jesus called his step-mother, Resa, who owned the family’s home. He told

her about the burglary. Resa called the police. When the police arrived, Resa

reported that three DVD players had been taken from her home along with 17

DVD movies.

        Resa gave the police serial numbers for two of the DVD players and a list of

the movies. The police went to the pawn shop and found two DVD players with

serial numbers matching those given by Resa. The police also determined that the

17 movies identified by Resa and a third DVD player had been sold at the pawn

shop.

        The police obtained the pawn slip listing these items. The slip showed

Appellant’s name as the person selling the items. Appellant had also signed the

pawn slip.

        The police spoke to the clerk at the pawn shop who had been working at

time the items were sold. The clerk, D. Hernandez, stated that Appellant had

brought the three DVD players into the shop. He could not remember if Appellant

also was carrying the DVD movies. Hernandez stated that another man was with

Appellant in the shop. Although the man had come over to speak to Appellant

during the sale, the man was not standing at the counter with Appellant during the



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transaction. Hernandez said that Appellant was the person who negotiated the sale

of the items.

      Hernandez stated that he had looked at either Appellant’s Texas

identification card or driver’s license. The identification number was noted on the

pawn slip. The pawn slip indicated that the transaction had occurred at 12:13 p.m.

      The police showed Herenandez a photo array, which included Appellant’s

picture. Hernandez identified Appellant as the man who had sold the three DVD

players and the 17 movies belonging to Resa Castillo. Police also showed a photo

array to Dupuis. She chose Appellant as the man she had seen at the Castillos’

home on December 2, 2009.

      Appellant was charged by indictment with burglary of a habitation. The

indictment read as follows:

          Dante Coleman, hereafter styled the Defendant, heretofore on or about
          December 2, 2009, did then and there unlawfully, with intent to
          commit theft, enter a habitation owned by Resa Castillo, a person
          having a greater right to possession of the habitation than the
          Defendant and hereafter styled the Complainant, without the effective
          consent of the Complainant, namely, without any consent of any kind.

      At trial, the State presented the testimony of the investigating police officers,

P. Dupuis, Jesus Castillo, Resa Castillo, and David Hernandez. The pawn slip

reflecting that Appellant had sold the stolen property was admitted into evidence.

The photo arrays in which Hernandez and Dupuis identified Appellant were also

admitted. Dupuis and Hernandez also identified Appellant at trial.


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      The jury found Appellant guilty of the offense of burglary of a habitation as

charged in the indictment. Appellant choose to have the trial court assess his

punishment. The court sentenced him to 15 years in prison. This appeal followed.

                            Sufficiency of the Evidence

      In one issue, Appellant asserts that the evidence is insufficient to support the

judgment of conviction.

A.    Standard of Review

      Due process requires that the State prove, beyond a reasonable doubt, every

element of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789 (1979); see also Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim.

App. 2011). We review the sufficiency of the evidence establishing the elements

of a criminal offense for which the State has the burden of proof under the single

standard of review set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). See Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App.

2013) (citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)).

Pursuant to the Jackson standard, evidence is insufficient to support a conviction

if, considering all the record evidence in the light most favorable to the verdict, no

rational fact finder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970);



                                          6
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In our review of the record, direct and circumstantial evidence are treated

equally; 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. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative




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force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Analysis

      As charged in the indictment, to establish that Appellant committed burglary

of a habitation, the State had to prove that (1) Appellant (2) entered a habitation

owned by Resa Castillo (3) without the effective consent of the Resa Castillo and

(4) with intent to commit a theft. See TEX. PENAL CODE ANN. § 30.02(a)(1)

(Vernon 2011). There was no law-of-parties instruction in the jury charge.

      On appeal, Appellant acknowledges that someone entered Resa Castillo’s

home with the intent to commit theft. However, he asserts that the State failed to

offer sufficient evidence to show that he entered the Castillo home. In his brief,

Appellant avers as follows:


         The jury was not given a parties charge, despite the fact that two
         people were potentially involved in the burglary of Ms. Castillo’s
         home. Ms. Dupuis saw two men at Ms. Castillo’s home, only one of
         [whom] she identifies. Mr. Hernandez testified that two men were in
         the pawnshop when Appellant pawned the stolen property. There
         well may be evidence on this record to support Appellant’s actions as
         a party to the burglary committed by the other man. Without a parties
         charge given, this is not a basis on which the jury could base a
         conviction.

      Absent an issue involving parties, the State must prove that the accused, as

the primary actor, entered the habitation. Rogers v. State, 929 S.W.2d 103, 107

(Tex. App.—Beaumont 1996, no pet.). Burglarious entry can be proven through


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circumstantial evidence. See Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim.

App. [Panel Op.] 1978). Direct evidence of entry is not required; that element may

be established by inference, just as inferences may be used to prove the elements of

any other offense. See Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App.

2006).

      Here, the State presented ample circumstantial evidence from which the jury

could infer that Appellant was the person who entered the Castillo home. Dupuis’s

testimony placed Appellant at the Castillo home on the day of the burglary shortly

before the stolen items were sold by Appellant at the pawn shop. Dupuis testified

that she saw Appellant look into a window of the Castillo home and then saw him

walk to the back of the home. Testimony of other witnesses showed that the

burglar had gained entry to the home by breaking a window near the back door.

      Dupuis further testified that she sat in her car a few minutes considering

whether to call the police. Dupuis stated that Appellant then “ran out.” At the

time, she also heard the squeal of the tires. She looked and saw a car quickly pull

into the Castillos’ driveway. Appellant went to the car and opened the back door.

Dupuis stated that Appellant had his back to her so she could not see whether

Appellant was carrying anything.      Dupuis testified that it was possible that

Appellant was carrying something. Dupuis stated that she saw Appellant shut the

back door. He then got into the front seat of the car, which then drove by her. It



                                         9
was the same car and the same driver that she had seen earlier in the neighborhood

as she drove home. Dupuis later identified Appellant in a photo array and at trial

as the person who she saw at the Castillos’ home.

      A short time after Dupuis saw Appellant at the Castillos’ home, Appellant

sold the three DVD players and the 17 movies taken from the house at a nearby

pawn store. The testimony of the pawn store clerk, D. Hernandez, established

Appellant as the person who had carried the DVD players into the store.

Hernandez did not remember whether Appellant had been carrying the movies.

Hernandez stated that there was another man with Appellant in the store. The man

spoke to Appellant while Appellant was standing at the counter; however,

Herenandez was clear in his testimony that it was Appellant who had negotiated

the sale of the DVD players and of the movies. The pawn slip, admitted into

evidence, identifies Appellant as the person who sold the items. Hernandez later

picked Appellant out of a photo array and identified Appellant at trial as the person

who sold the stolen items.

      Appellant asserts that the evidence “supports the other man burglarizing the

house with Appellant, acting as a party, as a lookout and pawner.” However, this

theory ignores the evidence showing that it was Appellant who Dupuis saw at the

Castillo residence peering in the window and then walking to the back of the home

where the burglar gained entry through a broken window. It was also Appellant



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who Dupuis saw run out a few minutes later to the car. She could not see whether

Appellant was carrying anything because his back was to her. She testified that it

was possible that Appellant was carrying something. She saw Appellant open the

back door of the car and close it. He then got in the front passenger seat. No

evidence was presented showing that the other man got out of the car at the

Castillo home.

      As in any case, the jury here was entitled to weigh and to resolve conflicts in

the evidence presented and to draw reasonable inferences therefrom. See Clayton,

235 S.W.3d at 778. From the evidence presented, the jury could have reasonably

inferred that it was Appellant who entered the Castillos’ home. We note that the

State was not required to disprove alternative reasonable hypotheses, such as that

suggested by Appellant. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012) (“For the evidence to be sufficient, the State need not disprove all reasonable

alternative hypotheses that are inconsistent with the defendant’s guilt.”); Wilson v.

State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (“We have rejected the

reasonable hypothesis construct as a measure of legal sufficiency.”).

      Viewing the evidence in a light most favorable to the verdict, we conclude

that a rational fact finder could have found beyond a reasonable doubt that

Appellant entered Resa Castillo’s home with the intent to commit theft.          See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jones v. State, 338 S.W.3d 725, 743



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(Tex. Crim. App. 2012). We hold that the evidence is sufficient to support the

judgment of conviction.

      We overrule Appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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




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