
NO. 07-05-0381-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

NOVEMBER 21, 2007
______________________________

JAVIER MYERS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-407108; HONORABLE DAVID GLEASON, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION 

	Appellant Javier Myers appeals from his conviction by jury of the offense of burglary
of a habitation with intent to commit robbery and his sentence assessed by the trial court
confining him to the Institutional Division of the Texas Department of Criminal Justice for
a period of twenty years.  We affirm.


Factual and Procedural Background
	By indictment, appellant was charged with offenses arising from events that took
place when he and another man broke into the Lubbock residence of John Hernandez on
August 19, 2004.  Count II of the indictment charged that appellant "intentionally, without
the effective consent of John Hernandez, the owner thereof, enter[ed] a habitation with
intent to commit robbery and did then and there commit the offense of robbery." (1) 
	 Contrary to his plea, after the evidence was presented, the jury found appellant
guilty of the offense charged in Count II of the indictment.  The court assessed punishment
as noted, and appellant timely filed notice of appeal.
 Trial testimony showed that Hernandez was off work on that day.  He and his sister
Nina left his residence around 11:00 that morning, and when they returned about thirty
minutes later, Hernandez noticed an unfamiliar car parked in the alley.  When he entered his
home, he saw two men, one of whom he identified at trial as appellant, coming out of a
bedroom.  Hernandez began yelling and cursing at the individuals, asking them what they
were doing in his home.  Both intruders ran to the back door.  Hernandez accosted them,
and all three men began "fighting, wrestling, kind of struggling" as the intruders tried to open
the door.  
	Hernandez saw that one of the men, later identified as appellant, had a "crow bar." (2)
When Hernandez tried to get the bar from appellant, he broke away from Hernandez and
"raised the crow bar" as if to hit him.  Hernandez, feeling that he was going to be hit, flinched
and raised his forearm to block the expected blow.  
	While Hernandez was struggling with the men, Nina entered the home and Hernandez
yelled to her to call 911.  Both intruders eventually fled through the home's front door,
reached their vehicle in the alley and drove away.  Both were apprehended shortly
thereafter, however, by Department of Public Safety troopers who were in the area.
Hernandez and Nina identified the individuals and provided statements to the police. 
Evidence also showed that the home's back door carried indications of forced entry during
Hernandez's and Nina's thirty-minute absence, by use of an object like the tire iron appellant
carried; closets had been opened and their contents disturbed, and a watch had been taken
from the residence.  At trial, Hernandez  testified that prior to August 19, 2004, he had never
seen or met appellant and did not give him permission to enter or be in his home. 
Hernandez further testified that when appellant raised the crow bar, he felt threatened that
appellant might inflict bodily injury on him.  
Issues
	Appellant asserts through two points of error that the evidence is legally and factually
insufficient to support his conviction.  When both the legal and factual sufficiency of the
evidence are challenged, we must first determine whether the evidence is legally sufficient
to support the verdict.  Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim App. 1996); Fowler
v. State, 65 S.W.3d 116, 118 (Tex.App.-Amarillo 2001, no pet.).
Applicable Law
	Under the Penal Code, a burglary may be committed in three "distinct ways." Tex.
Pen. Code Ann. § 30.02 (Vernon 1999); Espinoza v. State, 955 S.W.2d 108, 111 (Tex.
App.-Waco 1997, pet. ref'd).  To establish guilt of burglary of a habitation under Penal Code
§ 30.02(a)(1), the State must prove the defendant entered the habitation or building with the
intent to commit a felony, theft or assault at the time he entered.  Penal Code § 30.02(a)(2)
requires proof that the defendant remained concealed, with intent to commit a felony, theft
or assault, in a building or habitation.  Espinoza, 955 S.W.2d at 111.  Penal Code §
30.02(a)(3) requires proof that the defendant entered the habitation without the owner's
consent and while inside, committed or attempted to commit a felony or theft.  Id.  But
subsection (a)(3) does not require proof that intent to commit the felony or theft existed at
the time the defendant entered the habitation.    	   
	Here, the felony alleged is robbery.  A person commits robbery "if, in the course of
committing theft . . . and with intent to obtain or maintain control of the property, he: (1)
intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death."  Tex. Pen.
Code Ann. § 29.02 (Vernon Supp. 2003).  The phrase "in the course of committing theft" is
defined to mean "conduct that occurs in an attempt to commit, during the commission, or in
immediate flight after the attempt or commission of theft." Tex. Pen. Code. Ann. § 29.01(1)
(Vernon Supp. 2003).  A person commits theft if he unlawfully appropriates property with
intent to deprive the owner of the property.   Tex. Pen. Code Ann. § 31.03 (Vernon 2007).
Legal Sufficiency
	In conducting a legal sufficiency review, we must determine whether, after reviewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979); McKinney v. State, 207 S.W.3d 366, 374
(Tex.Crim.App. 2006); Fowler v. State,  65 S.W.3d 116, 118 (Tex.App.-Amarillo 2001, no
pet.).   A reviewing court considers all the evidence admitted that will sustain the conviction,
including improperly admitted evidence.   Hernandez v. State, 190 S.W.3d 856, 863-64
(Tex.Crim.App. 2006).  As fact finder, the jury is the exclusive judge of the credibility of 
witnesses and the weight to be afforded to their testimony.  Id.  The jury is free to accept one
version of the facts, reject another, or reject all or any of a witness's testimony. Id.  We must
uphold the jury's verdict against a legal sufficiency challenge unless it is irrational or
unsupported by more than a mere modicum of evidence.  Fowler, 65 S.W.3d at 118 (citing
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). Factual Sufficiency
 Evidence supporting guilt, though legally sufficient, may be factually insufficient
because it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or 
because evidence contrary to the verdict is such that the jury's verdict is against the great
weight and preponderance of the evidence.  Marshall v. State, 210 S.W.3d 618, 625
(Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006);
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000).  In a factual sufficiency review, we
consider all the evidence in a neutral light.  Marshall, 210 S.W.3d at 625; Watson, 204
S.W.3d at 414.  Although an appellate court's authority to review factual sufficiency permits
the court to disagree with the fact finder's determinations, the appellate court must accord
them due deference, particularly those determinations concerning the weight and credibility
of the evidence.  Johnson, 23 S.W.3d at 9. 
Effect of Court's Charge 
	We initially address appellant's contention that our evaluation of the sufficiency of
the evidence in this case is circumscribed by language of the court's charge.  The charge
allowed the jury to find appellant guilty of burglary of a habitation with intent to commit
robbery, or the lesser offenses of burglary of a habitation with intent to commit theft, or
criminal trespass.  With respect to the offense of burglary of a habitation with intent to
commit robbery, the abstract portion of the charge contained this language:
	In this case, the indictment having charged that the burglarious entry, if any,
was made with the intent to commit the crime of robbery, a felony, before you
would be warranted in finding defendant guilty, you must be satisfied from the
evidence beyond a reasonable doubt that the entry, if any, was so made,
without the effective consent of the owner, with the intent to commit the
specific crime of robbery.

Appellant also notes the charge in other places refers to "burglary with intent to commit
robbery," and notes that the verdict form provided the jury for that offense (which contains
the jury's verdict) states, "We, the jury, find from the evidence beyond a reasonable doubt
the defendant is guilty of the offense of burglary of a habitation with intent to commit
robbery, as charged in the indictment."  Appellant argues that, by the noted references in
the charge and by its failure to provide the jury with a verdict form more generally allowing
a finding of guilt of burglary of a habitation, (3) the trial court narrowed the jury's focus and
limited its consideration only to the definition of burglary of a habitation set forth in
subsection (a)(1) of § 30.02, requiring proof that the defendant entered the habitation with
intent to commit robbery.  For that reason, appellant contends, our review of the evidence
should consider only its sufficiency to support a conviction under that theory of the offense. 
	Under Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997), however, we must
measure the sufficiency of the evidence "by the elements of the offense as defined by the
hypothetically correct jury charge for the case. Such a charge would be one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily increase the
State's burden of proof or unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the defendant was tried."  Id. at 240. 
Such a standard, the court said in Malik, ensures that a judgment of acquittal is reserved
for cases in which there is an actual failure in the State's proof of the crime rather than a
mere error in the jury charge submitted.  Id. 
 Here, Count II of the indictment read as follows:
	And further, in Lubbock County, Texas, Javier Myers, hereafter styled the 
Defendant, heretofore on or about the 19th day of August, A.D. 2004, did
then and there intentionally, without the effective consent of John
Hernandez, the owner thereof, enter a habitation with intent to commit
robbery and did then and there commit the offense of robbery.

	As can be seen, Count II alleged that appellant entered the habitation with intent to
commit robbery, and also alleged that he then and there committed the offense of robbery. (4)
  It thus encompassed two of the three means of commission of the offense, those set out
in subsections (a)(1) and (a)(3) of section 30.02. (5) A hypothetically correct jury charge
therefore would include both means.  See Curry v. State, 30 S.W.3d 394, 404
(Tex.Crim.App. 2000) (applying Malik to indictment's manner and means allegations);
Malik, 953 S.W.2d at 240 (hypothetically correct charge does not unnecessarily restrict the
State's theories of liability). (6)  The court's charge to the jury correctly set forth the elements
of the offense and the relevant definitions.  Our evaluation of the sufficiency of the
evidence presented at trial therefore cannot be limited to the manner of commission of the
offense described in subsection (a)(1). See Gollihar v. State, 46 S.W.3d 243, 254-55
(Tex.Crim.App. 2001) (stating that when a statute defines alternative methods of manner
and means of committing an element and the indictment alleges only one of those
methods, "the law" for purposes of the hypothetically correct charge is the single method
alleged in the indictment). Analysis
Legal Sufficiency
Consistent with his contention regarding the effect of the court's charge on the
sufficiency analysis, appellant focuses his legal sufficiency argument on the requirement
of § 30.02(a)(1) for proof he possessed the intent to commit robbery at the time of his entry
into Hernandez's residence.  See, e.g., Moore v. State, 54 S.W.3d 529, 539
(Tex.App.-Fort Worth 2001, pet. ref'd) (applying requirement that burglarious entry be
made with the intent  to commit felony).  He contends the record is devoid of evidence he
possessed the intent to commit robbery when he entered the residence, and likens the
evidence produced here to that in Lewis v. State, 638 S.W.2d 148 (Tex.App.-El Paso
1982, pet. ref'd).  In Lewis, the court found legally insufficient the evidence that the
defendant committed burglary with intent to commit aggravated assault.  Testimony
showed that before the defendant fled the residence, he swung a small iron hammer at the
complainant's head.  After analyzing the evidence, the court stated, "Even viewing the
evidence in a light most favorable to the verdict, the record overwhelmingly reveals a
burglary with intent to commit theft, interrupted by the arrival of the owner and resulting in
a violent confrontation." Id. at 152.  The court noted there was no testimony describing the
source of the hammer.  The hammer itself was not in evidence, and no evidence described
its dimensions, weight or manner of use.  It further noted the evidence did not reveal the
proximity of the combatants or the proximity of the hammer swing to the complainant.  The
court concluded that evidence of the defendant's use of the hammer, while pertinent to the
assessment of his intent at the time of entry, did not in that case permit an inference that
he entered with the intent to commit aggravated assault.  Id. at 151-52. (7) 
 Appellant contends the evidence here likewise is insufficient to permit an inference
of his intent to commit the assaultive offense of robbery at the time he entered
Hernandez's home.  The evidence present here concerning the nature of the tire iron and
appellant's use of it greatly exceeds that present in Lewis.  The tire iron was before the
jury.  The evidence leaves little doubt that appellant and his accomplice used it to break
into Hernandez's home.  Testimony established appellant had the tool in his hand as he
tried to make his escape from the residence, and both Hernandez and Nina described his
raising it as if preparing to bring it down on Hernandez during their struggle.  Comparison
with Lewis does not aid appellant's contention on appeal that the evidence against him was
insufficient.
Our disposition of appellant's legal sufficiency issue does not turn, moreover, on the
evidence that he possessed intent to commit robbery when he entered the habitation.  As
discussed, the issue must be overruled if the evidence was legally sufficient under either
of the theories embodied in the hypothetically correct charge. 
The State's case was presented through the testimony of Hernandez, his sister
Nina, and one of the DPS troopers, and through photographs and the video recording
made by the trooper's dashboard camera.  We have no difficulty concluding that, viewed
in the proper light, the evidence would permit a rational finder of fact to find, beyond
reasonable doubt, the requisite elements of the offense under section 30.02(a)(3),
requiring, in this case, proof that appellant entered Hernandez's habitation without his
consent and there committed robbery.
Hernandez testified that he did not know appellant, did not give appellant permission
or consent to enter his home, and felt threatened appellant would inflict bodily injury on him
with the crow bar appellant had in his hands.  "Under the 'placed in fear' language in
section 29.02 of the Texas Penal Code, the factfinder may conclude that an individual
perceived fear or was 'placed in fear,' in circumstances where no actual threats were
conveyed by the accused."  Williams v. State, 827 S.W.2d 614, 616 (Tex.App.-Houston
[1st Dist.] 1992, pet. ref'd).  On cross-examination, Hernandez clarified that appellant "took
the stance to swing" the crow bar at him and "raised it up in the act of hitting" him. 
Hernandez testified that appellant then brought the crow bar down "about an inch." 
Hernandez flinched at the motion and was ready to block the swing with his forearm but
ultimately was not required to do so because appellant did not complete the blow.  As
noted, he testified he "felt threatened" that appellant might inflict bodily injury on him.   
The evidence is legally sufficient to establish that appellant entered Hernandez's
home without consent and there, while in the course of committing theft and with the
requisite intent, placed Hernandez in fear of imminent bodily injury.  Appellant's first issue
is overruled.
Factual Sufficiency

Appellant's factual sufficiency challenge also is based on his assertion that language
of the charge required the State to prove his intent to commit robbery existed when he
entered the habitation.  He does not contend that the jury heard evidence contrary to his
guilt on a theory he entered the residence without consent and there committed robbery. 
In considering factual sufficiency, we defer to the jury's determination in matters of
credibility and weight of any conflicting evidence and inferences.  Johnson, 23 S.W.3d at
8.  It was within the jury's discretion to determine the relative weight to accord the
testimony and evidence presented at trial and the jury was entitled to discount the weight
of or to disregard all or any part of any of the evidence so presented.  Id.  Having
considered the entirety of the evidence in a neutral light, we conclude that the proof of
appellant's guilt is neither so obviously weak as to undermine confidence in the jury's
determination, nor such that it is greatly outweighed by contrary proof.  Thus, the proof is
factually sufficient to support the verdict.  We overrule appellant's second issue.  
Having found the proof both legally and factually sufficient to support appellant's
conviction, and thus overruled his issues on appeal, we affirm the trial court's judgment.
 
						James T. Campbell
						          Justice


Do not publish.

Quinn, C.J., dissenting.
1.  Count I of the indictment charged appellant with burglary of a habitation with intent
to commit aggravated assault, and Count III with burglary of a habitation with intent to
commit theft. All three counts were based on the same events.  The State elected to try
appellant only on Count II. 
2.  Although photographs and other testimony indicate the item actually was a tire
iron, it was often referred to as a crow bar.
3.  Appellant contrasts the verdict form provided by the court with a "general verdict
form for 'burglary of a habitation, as alleged in the indictment,' " which, he states, would
have included "all three manner and means or definitions" of the offense.
4.  While the State may allege alternative means of commission of an offense in the
conjunctive in an indictment and describe them in the disjunctive in the jury charge, 
Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991), the application paragraph
of the jury charge here tracks the conjunctive language used in the indictment.  In any
event, however, sufficiency of the evidence is not to be measured by the language of the
application paragraph but instead is to be measured against the hypothetically correct jury
charge.  Gollihar v. State, 46 S.W.3d 243, 252 (Tex.Crim.App. 2001). 
5.  The indictment omitted any allegation that appellant entered the habitation and
there attempted to commit robbery.
6.  The dissent does not read Count II of the indictment to include an allegation
appellant committed the offense of burglary of a habitation in the means described in Penal
Code § 30.02(a)(3).  Our reading of Count II as including such an allegation is supported
by the discussion of it in appellant's brief.		
7.  See also id. at 153 (op. on reh'g).
