                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00186-CR


TIMMY JAY TAMPLEN                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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                         MEMORANDUM OPINION1
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                                 I. INTRODUCTION

      Appellant Timmy Jay Tamplen appeals his conviction for burglary of a

building.2 In two issues, Tamplen argues that the State failed to provide sufficient

evidence at trial that he intended to commit a theft when he admittedly entered a

building and removed scrap metal from it. We will affirm.

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).
                                II. BACKGROUND

      At trial, Jeffery Ward testified for the State.   Ward owns land in Wise

County, Texas, near Highway 114. Ward lived on the land before a fire burned

down his house, his dad’s house, and his dad’s shop. All that was left standing

after the fire was the burned shop. Ward testified that the shop contained burned

tools and scrap metal. Ward also said that from the highway, it would appear

that no one lived on the land. Even after the fire, Ward still collected his mail

from the property, and on May 8, 2008, he went to his property to retrieve his

mail on his way to pick up his daughter from school.

      When Ward first arrived on his land, he could not see that someone else

was there, but when he backed up to his mailbox, he saw the front of a red

pickup truck near the shop. Ward immediately went to confront whoever was on

his property because, by his account, no one else should have been there. Ward

encountered Tamplen and another man. The other man was standing next to the

truck, and Tamplen ―was inside the shop carrying stuff out.‖      At trial, Ward

identified Tamplen as the man who had come out of his shop carrying scrap

metal. Ward said that he confronted the two men. According to Ward, Tamplen

said that he and the other man had been hired by Mr. and Mrs. Wright to help

clean up the property and that they were intending to tear down the shop. By his

own account, Ward responded angrily and then called 9-1-1. Ward described the

location of Tamplen’s truck as being a place where you would park if you did not

want to be seen from the highway. Ward testified that although he knew who the


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Wrights were, he had never granted anyone permission to be on his property that

contained the shop. Ward said that he was in the process of selling the scrap

metal from the shop himself in an effort to raise money to rebuild his own home.

      Deputy Richard Luke Campbell of the Wise County Sheriff’s office also

testified for the State. Campbell responded to Ward’s 9-1-1 call. Campbell said

that when he arrived, Ward was in his own vehicle and that Tamplen and another

man were standing near Tamplen’s truck. Ward was visibly upset. Campbell

described Tamplen’s behavior as ―constantly moving,‖ ‖twitching,‖ and ―evasive

about answering questions.‖ Much like he had explained to Ward, Tamplen told

Campbell that he had been on the property the evening before and that Mrs.

Wright had asked him to remove some items from the property.            Campbell

testified specifically about Tamplen’s explanation for having been on Ward’s

property the day before: ―It didn’t make a whole lot of sense. I was trying to

figure out why he had been out there the previous evening; that’s where his

answers were evasive. He really couldn’t give an explanation for why he was out

there the day before.‖ Because of Tamplen’s story, Campbell called Mrs. Wright.

Campbell described his phone conversation with Mrs. Wright:

      I basically asked her if she had given--given anybody permission to
      go onto that property? She said, no. That she had seen a guy out
      there the previous evening, who identified himself as Tim. And had
      asked him if he knew Mr. Ward? And she believed that he did know
      Mr. Ward. And she said that he hadn’t been there in a while, and
      was wanting to know if Mr. Ward needed some help leveling off a
      piece of the property?

      ...


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      She explicitly said she did not give anybody permission to be out
      there?

Campbell said that after speaking with Mrs. Wright, he placed Tamplen under

arrest.

      The State called Sandra Kay Wright as well. Mrs. Wright testified that she

barely knew Ward. Mrs. Wright said that she had been working with a nonprofit

organization to help build homes destroyed by the same fire that had destroyed

Ward’s home. She went to Ward’s land because she needed to speak with him.

By her account, Mrs. Wright saw Tamplen on Ward’s property as she was driving

by on May 7, 2008. She testified that she had assumed that Tamplen knew

Ward or worked for him because Tamplen was on Ward’s property. According to

Mrs. Wright, Tamplen was standing near the site of Ward’s former house, so she

approached Tamplen and asked if he knew Ward. Mrs. Wright said that Tamplen

affirmatively gestured that he did know Ward. Mrs. Wright told Tamplen that she

was trying to reach Ward. During her conversation with Tamplen, Mrs. Wright

told Tamplen that she needed to speak to Ward about the nonprofit organization

preparing the foundation site for his new home. She gave Tamplen her phone

number and asked him to have Ward call her about the foundation site. Mrs.

Wright denied ever giving Tamplen permission to enter Ward’s property or to

remove anything from the shop.      She testified that she had assumed that

Tamplen had Ward’s permission to be on his property because he was there




                                       4
when she arrived. Mrs. Wright also testified that Tamplen never gave her his

own phone number.

      Douglas Lee Wright—another            State’s   witness and   Mrs. Wright’s

husband—testified that the Wrights lived within two miles of Ward’s property and

that the first time he had heard of Mrs. Wright’s conversation with Tamplen was

when Campbell called his home on May 8, 2008. The Wrights’ home was also

destroyed by the fire. Mr. Wright said that he had never met Tamplen, did not

hire him to clean up Ward’s property, and had no authority from Ward to give

anyone permission to enter his property.

      Tamplen testified on his own behalf. According to Tamplen, Mrs. Wright

approached him on May 7, 2008, introduced herself, and asked ―if [he] could be

out there the next day.‖ Tamplen said that he believed Mrs. Wright owned the

property and that she had employed him to clear the land. Tamplen said that

Mrs. Wright asked him to come back with a trailer so that he could haul off debris

and tear down the burned shop. Tamplen said that he gave her his ―card,‖ which

contained his telephone number. Tamplen averred that after renting a trailer, he

and his brother returned the next day to clean the property and then Ward

arrived, angry and yelling. Tamplen said that he tried to explain to Ward that

Mrs. Wright had hired him, that Ward would not listen, and that Ward called

Campbell, who arrived shortly and arrested Tamplen. The jury found Tamplen

guilty and assessed punishment at ten years’ incarceration and a $500 fine. This

appeal followed.


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                                 III. DISCUSSION

      In two points, Tamplen challenges the sufficiency of the evidence to

support his conviction.   Tamplen does not dispute that he entered Ward’s

property or that he removed scrap metal from the shop and loaded it onto a truck

and trailer; Tamplen contends only that the evidence is insufficient to prove that

he intended to commit a theft. We disagree.

      A.     Standard of Review

      Although Tamplen challenges both the legal and factual sufficiency of the

evidence to support the conclusion that he entered Ward’s shop with the intent to

steal the scrap metal found inside, the court of criminal appeals has held that

there is no meaningful distinction between the legal sufficiency standard and the

factual sufficiency standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App.

1996)).    Thus, the Jackson standard, which is explained below, is the ―only

standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt.‖ Id. Accordingly, we will apply this

same standard of review to both of Tamplen’s sufficiency complaints.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,


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443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

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

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009).       Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine 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). We

must presume that the factfinder resolved any conflicting inferences in favor of

the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

      The sufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case, not the

charge actually given. Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App.

2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a

                                        7
charge is one that accurately sets out the law, is authorized by the indictment,

does not unnecessarily restrict the State=s theories of liability, and adequately

describes the particular offense for which the defendant was tried. Villarreal v.

State, 286 S.W.3d 321, 327 (Tex. Crim. App.), cert. denied, 130 S. Ct. 515

(2009); Malik, 953 S.W.2d at 240. However, we may not affirm a conviction

based on legal or factual grounds that were not submitted to the jury. Malik, 953

S.W.2d at 238 n.3. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the factual details and legal

theories contained in the charging instrument. See Curry v. State, 30 S.W.3d

394, 404–05 (Tex. Crim. App. 2000).

      B.    Intent to Commit a Theft

      It is well settled in this state that the question of the intent with which a

person unlawfully enters a building is a fact question for the jury to be drawn from

the surrounding circumstances. Moreno v. State, 702 S.W.2d 636, 641 (Tex.

Crim. App. 1986); Stearn v. State, 571 S.W.2d 177, 177 (Tex. Crim. App. [Panel

Op.] 1978) (holding evidence of intent to commit theft sufficient when defendant

was found in residence’s kitchen and immediately fled, even though nothing in

house had been disturbed).       That is, the jury is exclusively empowered to

determine the issue of intent, and the events of a burglary may imply the intent

with which the burglar entered the property at issue. Moreno, 702 S.W.2d at

641; Joseph v. State, 679 S.W.2d 728, 730 (Tex. App.—Houston [1st Dist.] 1984,

no pet.).

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      In this case, when considering the evidence in the light most favorable to

the jury’s verdict, the record demonstrates that Tamplen did not have Ward’s

permission to be on his property. Mrs. Wright, the person whom Tamplen claims

gave him permission to be on Ward’s property, testified that she did not give him

permission to be on the property and that Tamplen falsely represented to her that

he knew Ward the day before Ward discovered Tamplen on the property. She

also testified, contrary to Tamplen, that he had not given her his contact

information. The evidence also shows that Tamplen parked his truck and trailer

in a place consistent with a person who was trying to keep his presence on the

property hidden.     Ward witnessed Tamplen loading Ward’s property on

Tamplen’s trailer and truck.    Moreover, Tamplen admitted entering Ward’s

property and loading the scrap metal. And Campbell testified that Tamplen could

not explain why he was on Ward’s property the day before.

      We conclude and hold that a rational factfinder could have found that

Tamplen intended to commit the theft of removing scrap metal from the shop on

Ward’s property and that a rational factfinder was free to disbelieve Tamplen’s

story that he believed that he had been hired to remove the property from the

shop. See James v. State, 48 S.W.3d 482, 487 (Tex. App.—Houston [14th Dist.]

2001, no pet.) (holding that whether a defendant’s explanation regarding his

possession of stolen property is reasonable or false is an issue to be decided by

the factfinder); see also Roane v. State, 959 S.W.2d 387, 389 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d) (reasoning that a jury is empowered to


                                       9
determine the issue of intent in prosecution for attempted burglary of habitation).

Thus, we overrule both of Tamplen’s issues.

                                 IV. CONCLUSION

      Having overruled both of Tamplen’s issues, we affirm the trial court’s

judgment.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 28, 2011




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