                                   NO. 07-07-0378-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                  AUGUST 19, 2008
                          ______________________________

                        GABRIEL GIL MARTINEZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

          FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

               NO. CR-07A-001; HONORABLE ROLAND SAUL, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Gabriel Gil Martinez, was convicted of burglary of a habitation with intent

to commit assault. The jury found the enhancement paragraph true and sentenced

appellant to confinement for a term of five years in the Institutional Division of the Texas

Department of Criminal Justice. By one issue, appellant contends that the evidence was

legally insufficient to support the judgment. We affirm.
                                   Factual Background


      Valerie Gomez resided at 237 Avenue J in Hereford, Texas. She lived with her

father in the home that belonged to her father.1 On October 22, 2006, Jessica Cano was

at Gomez’s residence. Cano was either appellant’s common-law wife or his girlfriend.

Cano had moved her personal property from appellant’s residence a few days before the

incident in question. On the evening in question, Gomez and Cano were at the Gomez

residence with two men. During the earlier part of the evening, appellant had talked to

Cano on the telephone. As a result of the conversation, appellant appeared at the Gomez

residence requesting the keys to the car that Cano was driving. Gomez testified that

appellant was not allowed in the home because she was afraid there would be trouble.

Gomez got the keys and gave them to appellant. Within an hour or so, appellant appeared

again at the home of Gomez requesting the key to the house he had shared with Cano.

Again, he was not allowed to come into the Gomez home. Gomez obtained the key and

gave it to appellant. Sometime near midnight of the same evening, appellant drove to a

vacant lot behind the Gomez home and parked his car. Appellant went to the rear of the

house and looked in through a kitchen window. Appellant observed Cano and a male, later

identified as Martin Rendon, holding hands, embracing, and kissing. Appellant knocked

loudly on the back door and proceeded to kick the door at least twice. The door was

secured by two boards that had been nailed over the door to prevent the door from being

opened. Failing to gain entry at the rear, appellant went around the house toward the front



      1
         Gomez’s father, George Lopez, was not present when the burglary took place and
did not testify at trial.

                                            2
door. As appellant went around the house, a second male in the house, Anthony

Ontiveros, went out the front door to investigate and around the house on the side opposite

appellant. The testimony was in conflict as to whether Oniveros shut the front door behind

him. Appellant entered the house without knocking and proceeded to the kitchen where

he assaulted Rendon. When appellant entered the kitchen, Cano fled to another portion

of the house. After striking and kicking Rendon, appellant searched the house for Cano,

finding her in a bedroom closet. Appellant attempted to pull Cano from the closet and, in

doing so, pulled her wig off of her head. Gomez proceeded to call 911 and appellant left

the scene.


       The police arrived, took the information, and had the witnesses come to the police

station to give statements. The following day, appellant contacted a detective with the

Hereford police and made arrangements to come in and give a statement. On the next

day, appellant appeared and gave a voluntary statement after being warned of his

constitutional rights. The statement was introduced at trial. The jury ultimately convicted

appellant and this appeal followed, wherein appellant contends that the evidence was

legally insufficient to prove he entered the habitation without the effective consent of the

owner.


                                     Legal Sufficiency


       In assessing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.


                                              3
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).


       In discussing the application of the standard of review for legal insufficiency, the

Texas Court of Criminal Appeals set forth some guidelines in Clayton v. State that we find

instructive in the instant case. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.

2007). This standard of review applicable to a legal sufficiency challenge accounts for the

jury’s duty to resolve conflicts in the testimony, weigh the evidence, and draw reasonable

inferences from the basic facts to the ultimate facts. Id. Therefore, in analyzing the legal

sufficiency of the evidence, we 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. In our review, we consider all the

evidence without deference to whether it was properly or improperly admitted.               Id.

Because we are to view the evidence in the light most favorable to the verdict, when the

record supports conflicting inferences, we presume that the fact finder resolved the

conflicts in favor of the verdict and defer to their determination. Id. Finally, circumstantial

evidence is as probative as direct evidence in proving an actor’s guilt and alone can be

sufficient to establish guilt. Id.


       In order to establish appellant’s guilt, the State was required to prove that the

appellant, without the effective consent of the owner, entered a habitation with the intent

                                              4
to commit the offense of assault. See TEX . PENAL CODE ANN . § 30.02(a)(1) (Vernon 2003).2

The State alleged that Valerie Gomez was the owner of the Gomez house for purposes of

the indictment. Owner is defined as the person who has title to the property, possession

of the property, whether lawful of not, or a greater right to possession of the property than

the actor. See § 1.07(35)(A).


       In applying the foregoing law to the facts, we note that Gomez was living in her

father’s home and no one has challenged her actual authority to determine who had the

right to enter the Gomez home on the date in question.              Further, the testimony

demonstrated that she did not allow appellant in the home on the two earlier visits. In each

of the prior instances, appellant knocked and waited for the door to be answered. From

this, the jury could easily infer that appellant knew he did not have consent to enter the

home as he pleased. Additionally, Gomez’s testimony demonstrated that she feared a

confrontation between appellant and Cano if appellant was allowed to enter the house.

Cano testified that Gomez’s father did not allow appellant in the home. Against this

evidence, appellant testified that he had been in the house before to visit Gomez’s

children, who were his nephew and niece. Appellant did admit that those visits were with

his brother, Gomez’s former husband and the father of the children. Appellant’s entry into

the home at the time of the assault was preceded by, what the jury could have inferred, an

attempt to break into the house through the back door. After being unable to gain entrance

via the barred back door, appellant ran around to the front and immediately entered the

house. Finally, appellant makes much of the fact that he says the front door was open


       2
           Further references to the Texas Penal Code will be by reference to “§ ___.”

                                              5
when he came in. However, this testimony was also in conflict. Ontiveros testified that he

shut the door. Further, the fact that the door may have been opened does not mean entry

was with consent. See Johnson v. State, 664 S.W.2d 420, 422 (Tex.App.–Amarillo 1983,

no pet.). It was up to the jury to listen to the evidence and to make the final determination.

Clayton, 235 S.W.3d at 778. Based upon the record before us, we cannot say that the jury

acted irrationally in deciding these issues against appellant. Therefore, we conclude that

the evidence was legally sufficient.


                                         Conclusion


       Having determined that the evidence was legally sufficient, we affirm the trial court’s

judgment.




                                                  Mackey K. Hancock
                                                      Justice



Do not publish.




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