Opinion filed November 7, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-17-00309-CR
                                     __________

                    SHANE LEE LEMONS, Appellant
                                        V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 106th District Court
                            Gaines County, Texas
                        Trial Court Cause No. 17-4782


                     MEMORANDUM OPINION
      The jury found Appellant, Shane Lee Lemons, guilty of burglary of a
habitation, found the enhancement paragraph to be true, and assessed his punishment
at confinement for fifty years in the Institutional Division of the Texas Department
of Criminal Justice and a $1,000 fine.       The trial court sentenced Appellant
accordingly. On appeal, Appellant challenges the sufficiency of the evidence to
support his conviction. We affirm.
                                 Background Facts
      Alicia Perez Espinoza and her sons, Jose Efrain Perez and Jose Angel Perez,
have a house located at 211 Southwest Avenue B in Seminole, Texas. Jose Efrain
Perez previously lived in the house for two years, but he had moved out
approximately one and one-half years prior to the burglary. After Jose Efrain Perez
moved out, the house was vacant, and family members primarily used the house for
storage. On March 14, 2017, Jose Efrain Perez visited the house, and nothing
seemed out of place. On March 18, Jose Efrain Perez returned and discovered the
house had been burglarized. He then contacted the police, who began investigating.
After meeting with the police, Jose Efrain Perez tried to locate his property by
looking through for-sale postings on Facebook. There, he found several posts
created by Appellant attempting to sell property that had been taken from 211
Southwest Avenue B. This included an air conditioner window unit, a lawn mower,
and a weed eater, all of which were missing from the house. Jose Efrain Perez
showed pictures of the postings to the police.
      On March 21, the chief of police, Bernard “Bernie” Kraft Jr., began assisting
with the investigation. Using the lead from Appellant’s Facebook post, Chief Kraft
contacted Appellant’s girlfriend, Audra Barberousse, and her daughter, Helen
Willis, who both lived with Appellant at the time of the burglary. Both women
assisted Chief Kraft in recovering some of the missing property. Chief Kraft
described different items that were missing, and the women confirmed that much of
the property was in their home and that Appellant had told them he received the
property from a friend for helping the friend move. The women also told Chief Kraft
that, on March 18, they had accompanied Appellant to Brownfield, Texas, where
Appellant sold what the women believed was an air conditioner.          Using that
information, Chief Kraft located the house where the sale occurred, which was
owned by Teresia DePoyster and Paul Woodard.          Chief Kraft then contacted
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DePoyster and Woodard and retrieved the air conditioner. DePoyster and Woodard
confirmed that they had acquired the air conditioner via Appellant’s Facebook post.
      After reclaiming the air conditioner, Chief Kraft recovered many of the other
missing items from Appellant’s residence. This included the lawn mower and weed
eater that were posted on Facebook, a Casio keyboard, a coffee maker, clothing,
cosmetics, a suitcase, and a helmet Jose Efrain Perez used while riding his four-
wheeler. After repossessing the missing items, Chief Kraft contacted Appellant.
Chief Kraft testified that, when he asked Appellant about the burglary, Appellant
said he “knew nothing about it, prove it.”
                                        Analysis
      In his sole issue on appeal, Appellant contends that the evidence is legally
insufficient to establish that he is guilty of burglary of a habitation. Appellant argues
that there is insufficient evidence to establish that the structure was a habitation; that
Appellant entered the habitation; and that Appellant attempted to commit theft,
committed theft, or had the intent to commit theft while entering the habitation.
      The standard of review for sufficiency of the evidence is whether any rational
trier of fact could have found the appellant guilty of the charged offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see also Malik v. State, 953 S.W.2d
234, 240 (Tex. Crim. App. 1997) (“[S]ufficiency of the evidence should be measured
by the elements of the offense as defined by the hypothetically correct jury charge
for the case.”). We review the evidence in the light most favorable to the verdict
and determine whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The trier of fact may
believe all, some, or none of a witness’s testimony because the factfinder is the sole
judge of the weight and credibility of the witness’s testimony. Sharp v. State, 707
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S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex.
App.—Eastland 2008, pet. ref’d). We defer to the trier of fact’s resolution of any
conflicting inferences raised by the evidence and presume that the trier of fact
resolved such conflicts in favor of the verdict. Jackson, 443 U.S. at 326; Brooks,
323 S.W.3d at 899; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      As charged in this case, a person commits burglary of a habitation if, without
the effective consent of the owner, the person enters a habitation and commits or
attempts to commit theft. TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2019).
Appellant first argues that there is insufficient evidence that the structure in question
was a habitation. The Penal Code defines habitation as “a structure or vehicle that
is adapted for the overnight accommodation of persons.” Id. § 30.01(1). In this
context, “adapted” means suitable. Blakenship v. State, 780 S.W.2d 198, 209 (Tex.
Crim. App. 1989) (op. on reh’g). What constitutes a structure that has been adapted
for overnight accommodation “is a complex, subjective factual question fit for a
jury’s determination.” Id. Relevant factors to consider are “whether someone was
using the structure . . . as a residence at the time of the offense; whether the structure
. . . contained bedding, furniture, utilities, or other belongings common to a
residential structure; and whether the structure is of such a character that it was
probably intended to accommodate persons overnight (e.g. house, apartment,
condominium, sleeping car, mobile home, house trailer).” Id. While all factors are
relevant, none are essential or dispositive. Id. On appeal, the determination of
whether a structure is a habitation will only be overturned if the appellant shows that
“no reasonable trier of fact could have found the place to have been a habitation
under the criteria above.” Id. at 209–10.
      In this case, there was sufficient evidence that the house was a habitation. The
evidence at trial established that the house had a kitchen, living room, bathroom,
bedrooms, and a detached garage. The house was also wired for electricity and
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plumbed for water and gas.       Additionally, Jose Efrain Perez testified that he
previously lived in the house for about two years. On the date of the burglary,
despite lacking a bed, the house contained other furniture such as a sofa and a
Barcalounger. Although the house had been vacant for at least a year and a half,
family members had been using the house to store household items, and Alicia
Espinoza testified that she and her son planned to rent the house to others. Moreover,
the Court of Criminal Appeals has found a structure to be a habitation even though
it was vacant for approximately two years. See id. at 206, 210. Thus, the record
contains sufficient evidence from which a rational trier of fact could have found
beyond a reasonable doubt that the house was a habitation.
      Appellant also argues that there is insufficient evidence to show that he
entered the habitation or committed or attempted to commit theft.           Although
Appellant emphasizes that there is no direct evidence, direct evidence is not
necessary. “Guilt of the offense of burglary can be established circumstantially by
the combined and cumulative force of all the incriminating circumstances.”
Hernandez v. State, 190 S.W.3d 856, 863 (Tex. App.—Corpus Christi–Edinburg
2006, no pet.). Further, it is well settled that “a defendant’s unexplained possession
of property recently stolen in a burglary permits an inference that the defendant is
the one who committed the burglary.” Rollerson v. State, 227 S.W.3d 718, 725 (Tex.
Crim. App. 2007); see also Harvard v. State, 972 S.W.2d 200, 203 (Tex. App.—
Beaumont 1998, no pet.) (The fact that the defendant possessed stolen property on
the same day that it was taken and sold it to another party allowed the jury to infer
that the defendant had entered the victim’s house and taken the property.).
      Here, there was sufficient evidence for the jury to reasonably conclude that
Appellant entered the habitation without the effective consent of the owner and
committed or attempted to commit theft. The evidence at trial showed that the house
was broken into and that property was removed. Alicia Espinoza and Jose Efrain
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Perez both testified that only family members had permission to enter the house and
that Appellant did not have permission to enter. Jose Efrain Perez also testified that,
shortly after the break-in, he discovered that Appellant had listed many of the stolen
items for sale on Facebook. DePoyster testified that Appellant offered to trade an
air conditioner for her mobile hotspot via Facebook, and both DePoyster and
Woodard identified Appellant as the man who came to their house to make the trade.
Jose Efrain Perez further confirmed that the air conditioner in Appellant’s Facebook
post was the same air conditioner that had been stolen.
      Additionally, the evidence showed that, at the time of the break-in, Appellant
resided at 209 ½ Southwest Avenue B, which is located right next to the burgled
house at 211 Southwest Avenue B. Chief Kraft testified that a large majority of the
property that was stolen from 211 Southwest Avenue B was recovered from
Appellant’s residence. This included the lawn mower and weed eater listed in the
indictment. Jose Efrain Perez confirmed that the weed eater and lawn mower in
Appellant’s Facebook post were the same ones taken from his home. Chief Kraft
testified that distinguishing marks on the weed eater established that the weed eater
in Appellant’s Facebook post was the same one recovered from Appellant’s
residence. Similarly, Chief Kraft confirmed that the stolen lawn mower was the
lawn mower in Appellant’s Facebook post and was recovered from Appellant’s
home. The jury also heard that the missing Casio keyboard, coffee maker, clothing,
cosmetics, suitcase, and helmet were recovered from Appellant’s residence as well.
      Barberousse and Willis both testified that they lived with Appellant at the time
of the break-in and that Appellant told them that he had received the property in
question from a friend for helping him move. Appellant now argues that this
explanation of how he received the property shows that there is insufficient evidence
to support his conviction. But, as the final judge of credibility, the jury was free to
disregard this unsubstantiated justification that was raised at trial. See Barnes v.
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State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (stating that the jury is the
exclusive judge of the credibility of, and the weight to be given to, witness
testimony). Based on our review of the evidence, we hold that the evidence was
sufficient to support the jury’s verdict. Appellant’s sole issue is overruled.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


November 7, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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