                             NUMBER 13-07-00027-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


SANTOS FRIAS, JR.,                                                           Appellant,

                                             v.

THE STATE OF TEXAS,                                                           Appellee.


  On appeal from the 377th District Court of Victoria County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       Appellant, Santos Frias Jr. appeals his conviction for burglary of a habitation with

intent to assault. See TEX . PENAL CODE ANN . § 30.02(a)(1) (Vernon 2003). A grand jury

indicted Frias for entering the residence of Rosalinda Contreras, his wife, without

Contreras’s consent and with intent to assault. A jury convicted Frias and sentenced him

to seventy-five years in prison. By two issues, Frias contends that the evidence is legally

and factually insufficient to support the jury’s verdict. We affirm.
                                      I. BACKGROUND

       The underlying conviction stems from an altercation Frias had with Contreras on

November 11, 2004. On that date at 4 a.m., Frias banged on Contreras’s apartment door

and asked to be let in. Contreras repeatedly refused to allow Frias into the apartment and

told him to go away, but Frias forcibly entered by kicking in the door. According to

Contreras’s testimony at trial, she called 911 from her cell phone before Frias gained entry.

When Frias found her in the bedroom, he said “you fucking bitch, you called the police on

me.” He then threatened to kill her, and jumped on top of her in an aggressive attempt to

get the cell phone.     Contreras testified that Frias’s action caused her bodily injury.

Contreras also testified that Frias jumped off her and fled when he heard a car approach.

As Frias fled, Officer Karl Brune entered the apartment and found Contreras upset, crying,

and laying on the bedroom mattress. Officer Brune pursued Frias, but Frias escaped.

       After the incident, Contreras filed a police report, which Officer Brune took.

According to the report, Contreras failed to specifically allege the death threats. Instead,

Contreras stated in the report that “[she was] very much afraid [Frias] was going to kill her.”

Officer Brune testified that he neither witnessed any assaultive behavior when he arrived

at the scene nor noticed any bruising on Contreras when she filed the report.

       Contreras testified that in the six months before the incident she and Frias argued

every day and Frias physically abused her more than ten times. Contreras also testified

about three particular incidents that occurred shortly before November 11, 2004.

       Contreras testified that on October 26, 2004 Frias began hitting her after she

refused to give him money that had been set aside to pay bills. The day after, Contreras

requested and was granted a protective order by a justice court with the assistance of Lilly



                                              2
Elizondo, an employee at a women’s shelter. Elizondo testified that she remembered

Contreras having a swollen face the day she requested the protective order.

       The following two incidents that Contreras testified about occurred in November.

According to Contreras, on November 6, 2004 Frias continually called her while she was

at work in a jealous attempt to ensure she was working. When Contreras arrived home

after work, Frias was at the apartment and called Contreras a liar and “a bitch” in front of

her twenty-year-old son. Contreras testified that Frias then pushed her and her son out of

the apartment and into the hallway along with all their possessions. She claimed that when

Frias threw her out into the hallway, he left a bruise on her arm that lasted between three

weeks and a month. Contreras subsequently regained access to the apartment after police

arrived and arrested Frias. She called the police again on November 10, 2004 when Frias

arrived at the apartment and asked to speak with Contreras. Contreras refused to speak

with Frias and he left before the police arrived.

       Frias was indicted for burglary of a habitation with intent to assault. A jury found him

guilty and sentenced him to seventy-five years in prison. This appeal ensued.

                                       II. DISCUSSION

       In his first and second issues, Frias contends that the evidence was legally and

factually insufficient to support his conviction. Specifically, Frias contends that the State

failed to prove beyond a reasonable doubt that he intended to assault Contreras when he

forcibly entered her residence.

A.     Standards of Review

       A legal sufficiency challenge requires the reviewing court to review all relevant

evidence in a light most favorable to the verdict and determine whether any rational fact-

finder could have found the essential elements of a crime beyond a reasonable doubt.

                                              3
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The critical inquiry is not to determine

whether a jury has been properly instructed because the sufficiency of the evidence is

measured against the elements of the offense as defined by a hypothetically correct jury

charge for the case. Jackson, 443 U.S. at 318; Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). Under this standard of review, a reviewing court is not permitted to

“disregard, realign, or weigh evidence.” Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.

App. 1991). Therefore, the fact-finder is the exclusive judge of witness credibility. Id.

         A factual sufficiency challenge requires a reviewing court to objectively and neutrally

view all the evidence and reverse a verdict of guilty only when the evidence is so weak as

to make the verdict clearly wrong and manifestly unjust, or when the verdict contradicts the

great weight and preponderance of the available evidence. Watson v. State, 204 S.W.3d

404, 414-15 (Tex. Crim. App. 2006). Although a reviewing court is authorized to disagree

with the jury's determination, even if probative evidence exists that supports the verdict, the

court’s evaluation should not substantially intrude upon the jury's role as the exclusive

judge of witness credibility. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App.

1997).

B.       Applicable Law

         To establish Frias committed the crime, the State must prove beyond a reasonable

doubt that Frias, without the effective consent of the owner, entered a habitation with the

intent to commit assault. See TEX . PENAL CODE ANN . § 30.02(a)(1) (Vernon 2006). A

person acts intentionally, or with intent, with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the conduct

or cause the result. TEX . PENAL CODE ANN . § 6.03(a) (Vernon 2003). Intent is an essential

element of the offense of burglary and must be proved by the State beyond a reasonable

                                                4
doubt; it may not be left simply to speculation and surmise. Greer v. State, 437 S.W.2d

558, 559-60 (Tex. Crim. App. 1969). Intent can be inferred from the acts, words, and

conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

Furthermore, the fact-finder may rely on circumstantial evidence to determine intent.

LaPont v. State, 750 S.W.2d 180, 181 (Tex. Crim. App. 1986).

        Frias contends that the State failed to provide both legally and factually sufficient

evidence to establish his intent to commit assault beyond a reasonable doubt. We now

examine these issues in turn.

1.      Issue 1: Challenge to the Legal Sufficiency of the Evidence

        First, Frias contends there was legally insufficient evidence that he intended to

assault Contreras when he entered the residence. Frias argues that he did not become

enraged or intend to assault Contreras until he learned of her call to the police, thereby

demonstrating he did not possess the requisite intent when he first entered the residence.

Frias also contends the conflicting testimony regarding his threats to Contreras and her

injuries demonstrate the failure of the State to prove beyond a reasonable doubt that he

entered the apartment with the intent to assault Contreras.

        When viewing the evidence in the light most favorable to the verdict, the jury could

have reasonably assumed that Frias’s aggressive conduct of kicking down the door at 4

a.m. demonstrated his intent to assault. Contreras’s testimony of previous incidents of

abuse, accompanied by Elizondo’s testimony of Contreras’s swollen face, also provide

circumstantial evidence indicating Frias’s assaultive conduct.1 See McGee v. State, 923

S.W.2d 605, 608 (Tex. App.–Houston [1st Dist.] 1995, no pet.) (providing that the fact-

        1
          At trial, Frias did not object to Elizondo’s and Contreras’s testim ony about prior alleged assaults that
Frias m ade against Contreras. Additionally, on appeal, Frias does not contend that the trial court erred in
adm itting the aforem entioned testim ony.

                                                        5
finder may consider the defendant's conduct and surrounding circumstances and events

in deciding the issue of intent).

       Second, Frias’s attempt to point to the conflicting testimony regarding whether his

jumping on Contreras caused bodily injury is equally unavailing. Assault is not only defined

as intentionally causing bodily injury, but also “intentionally . . . causing physical contact

with another when the person knows or should reasonably believe that the actor will regard

the contact as offensive or provocative.” See Tex. PENAL CODE ANN . § 22.01 (Vernon

2003). The past history of abuse, protective order, and Contreras’s repeated reluctance

to allow Frias to enter the residence demonstrate that Frias should reasonably have

believed that the physical contact caused by intentionally jumping on Contreras would be

regarded as offensive. Whether Frias’s intentional contact caused Contreras’s bodily

injury, as evidenced by bruises, or merely constituted offensive physical contact is

immaterial because the alleged conduct constitutes an assault.

       Contreras’s testimony presented sufficient evidence of all the elements of burglary

of a habitation, including ample circumstantial evidence of Frias’s intent to assault, to allow

a rational fact-finder to determine that the elements had been proven beyond a reasonable

doubt. Therefore, the evidence was legally sufficient to support the jury’s verdict. Jackson,

443 U.S. at 319. Frias’s first issue is overruled.

2.     Issue 2: Challenge to the Factual Sufficiency of the Evidence

       Frias argues the evidence that he intended to assault Contreras when he entered

the apartment was factually insufficient to support the jury verdict. An objective review of

all of the evidence in a neutral light reveals some evidence that is contrary to the verdict.

The evidence included Officer Brune’s failure to notice a bruise on Contreras, and



                                              6
Contreras failure to specifically mention the threats she alleged were made by Frias in the

police report.

       However, we must consider the evidence presented as a whole. The fact-finder was

presented with two potential versions of the incident. In one version, the jury could

disbelieve Contreras’s testimony by wholly relying on the police report and Officer Brune’s

failure to view Contreras’s bruise. Alternatively, the jury could convict Frias by believing

Elizondo’s testimony about Contreras’s condition when she meet with her, and Contreras’s

testimony that Frias forcibly entered the residence, threatened her, and assaulted her.

       After viewing the evidence as a whole, the contrary evidence is not so strong as to

make the verdict clearly wrong and manifestly unjust, nor does the verdict contradict the

great weight and preponderance of the available evidence. Johnson v. State, 23 S.W. 3d

1, 11 (Tex. Crim. App. 2000). Therefore, the evidence is factually sufficient to support the

jury’s verdict. Frias’s second issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                 ROGELIO VALDEZ
                                                 Chief Justice


Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 26th day of June, 2008.




                                             7
