                                  NO. 07-05-0359-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                    APRIL 20, 2006

                         ______________________________


                           GONZALO ROJAS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-408551; HONORABLE DAVID GLEASON, JUDGE

                        _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Following a plea of not guilty, appellant Gonzalo Rojas was convicted by a jury of

burglary of a habitation with intent to commit assault and sentenced to twenty-five years

confinement. By two issues, appellant contends (1) the trial court erred in refusing to
instruct the jury with regard to lesser included offenses, and (2) the evidence was factually

insufficient to support a finding of guilt. We affirm.


       Appellant was involved in an altercation with the complainant, Pedro Arzabala, after

learning Pedro was romantically involved with Ester Fuentes, the mother of appellant’s two

children. The altercation occurred at Pedro’s apartment. When appellant arrived at the

apartment, Pedro’s roommate, Jorge Fuentes, answered the door and informed appellant

that Pedro was asleep. However, appellant insisted that Jorge tell Pedro he wanted to see

him. Shortly thereafter, Pedro appeared at the door but remained standing inside the

apartment. Appellant then confronted him regarding his involvement with Ester. The

confrontation escalated and appellant reached into the doorway and grabbed Pedro,

apparently damaging his shirt.1      Jorge stepped between the two men and escorted

appellant to the parking lot. The men reported the incident to police, and appellant was

arrested and charged with burglary of a habitation with intent to commit assault.


       At trial, prior to jury deliberations, appellant objected to the jury charge and

requested the inclusion of instructions on the misdemeanor offenses of assault by contact

and assault by threat. After a brief recess, the trial court overruled appellant’s objections

and denied his request for additional instructions. Appellant was subsequently convicted

of burglary.



       1
       The parties dispute whether the shirt was ripped during the struggle or cut with a
sharp object.

                                              2
         By his first issue, appellant contends the trial court erred in denying his request to

include instructions in the jury charge pertaining to assault by threat and assault by

conduct. Appellant contends misdemeanor assault is a lesser-included offense of the

burglary as charged. We disagree.


         An instruction on a lesser-included offense is only proper when (1) the lesser-

included offense is included within the proof necessary to establish the offense charged,

and (2) some evidence exists in the record that would permit a rational jury to find that if

the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855

S.W.2d 666, 672-73 (Tex.Cr.App. 1993); Tex. Code Crim. Proc. Ann. art. 37.09 ( Vernon

1981).


         Regarding the first prong, appellant was indicted for burglary of a habitation with

intent to commit assault pursuant to section 30.02(a)(1) of the Penal Code. Tex. Pen.

Code Ann. § 30.02(a)(1) (Vernon 2003). A person commits the offense if he (1) enters a

habitation (2) not open to the public (3) without the owner’s consent (4) with intent to

commit an assault. Id. Under the offense as charged, the State is not required to prove

the existence of an actual assault. Jacob v. State, 892 S.W.2d 905, 909 (Tex.Cr.App.

1995). Rather, the State must only show appellant intended to commit an assault. Id.

Accordingly, assault is not a lesser-included offense of burglary with intent to commit

assault because the proof necessary to establish assault is not included within the proof

necessary to establish the burglary as charged. Appellant’s first issue is overruled.


                                               3
       By his second issue, appellant contends the evidence was factually insufficient to

sustain his conviction because the evidence that he intentionally entered the apartment was

so weak as to render the verdict manifestly unjust. We disagree.


       In conducting a factual sufficiency review, we view all the evidence without the prism

of "in the light most favorable to the prosecution" and set aside the verdict only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000).             We must determine after

considering all the evidence in a neutral light, whether the jury was rationally justified in

finding guilt beyond a reasonable doubt.          Zuniga v. State, 144 S.W.3d 477, 484

(Tex.Cr.App. 2004 ). In our review, we do not resolve any conflict of fact, weigh any

evidence, or evaluate the credibility of the witnesses, as this was the function of the trier

of fact. See Adelman v. State, 828 S.W.2d 418, 421 ( Tex.Cr.App. 1992).


       Section 6.03 of the Penal Code provides that a person acts intentionally when “it is

his conscious desire to engage in the conduct or cause the result.” Tex. Pen. Code Ann.

§ 6.03(a) (Vernon 2003). Here, appellant does not dispute the fact that he entered the

apartment.    In fact, all three witnesses, including appellant, testified that when the

confrontation escalated, appellant reached into the doorway of the apartment and grabbed

Pedro by the shirt. In reviewing the record, we find no evidence suggesting appellant did

not intend to reach through the doorway and assault Pedro. Furthermore, the jury, as trier

of fact, may choose to believe all, some, or none of any witness's testimony. Sharp v. State,


                                              4
707 S.W.2d 611, 614 (Tex.Cr.App. 1986). A jury's decision is not manifestly unjust merely

because it resolved conflicting views of evidence in favor of the State. Cain v. State, 958

S.W.2d 404, 410 (Tex.Cr.App. 1997).


   Viewing the evidence in a neutral light, we conclude the evidence is not so weak that

the jury's verdict was clearly wrong and unjust, nor is the verdict so against the

overwhelming weight of the evidence as to be clearly wrong and unjust. We find the

evidence is factually sufficient to support appellant's conviction. His second issue is

overruled.


   Accordingly, the trial court’s judgment is affirmed.



                                          Don H. Reavis
                                            Justice

Do not publish.




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