                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00184-CR


Ollie Curtis Johnson                      §   From Criminal District Court No. 2

                                          §   of Tarrant County (1250554D)

v.                                        §   November 29, 2012

                                          §   Opinion by Justice McCoy

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Bob McCoy
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00184-CR


OLLIE CURTIS JOHNSON                                                APPELLANT

                                          V.

THE STATE OF TEXAS                                                        STATE


                                       ----------

      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                       ----------

                         MEMORANDUM OPINION1

                                       ----------

                                   I. Introduction

      In one issue, Appellant Ollie Curtis Johnson appeals his conviction of

burglary of a habitation. We affirm.

                     II. Factual and Procedural Background

      In January 2011, Billy Harbour moved into an assisted living center, but he

retained his still-furnished home with the utilities connected and had his son-in-
      1
       See Tex. R. App. P. 47.4.


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law, James Rogers, check on the house two or three times a week. On August

12, 2011, Rogers called the police after finding Johnson in the house—asleep in

a bed in Harbour’s pajamas—and then he called Harbour.

      When the police arrived, they woke Johnson and arrested him. After his

arrest, Johnson asked for his clothing and shoes and led the police to another

room, where he pointed out his clothes, shoes, and a duffel bag. Police asked

him whether the bag contained any weapons, and Johnson said no. Johnson

began listing items in the bag, including ―chains‖ in the side pocket. After placing

Johnson in a patrol car, police inventoried the bag and found some property,

which Rogers and Harbour identified as Harbour’s deceased wife’s costume

jewelry and a decorative curtain chain from the house. Rogers testified that the

jewelry had hung for years on a rack behind a door in Harbour’s house, and he

said that he saw the police bring the bag out, open it, and take the jewelry out of

it.

      Johnson testified that he was homeless and that he and other people had

stayed at Harbour’s house, although he was the only one there when the police

came. He admitted that he had been trespassing but denied committing burglary

and said that he had one gold chain in the duffel bag, that it was his property,

and that he had not placed any costume jewelry or curtain chains from the home

in the bag. Johnson claimed that he saw the police carry the items out of the

house and plant them in his bag.          Johnson also admitted that he had prior

convictions for theft and burglary and had spent ―quite a bit of [his] life in jail.‖


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      The trial court’s charge instructed the jury on burglary of a habitation and

the lesser-included offense of criminal trespass. The jury convicted Johnson of

burglary of a habitation and sentenced him to twenty-five years’ confinement, and

the trial court entered judgment on the verdict. This appeal followed.

                          III. Sufficiency of the Evidence

      In his single issue, Johnson asserts that the evidence is insufficient to

show that he entered Harbour’s home with intent to commit theft or that he

committed or attempted to commit theft once there. He also argues that the

evidence is only sufficient to show that he committed the lesser offense of

criminal trespass and requests that we reform the judgment to reflect that

conviction and remand this case for a new punishment trial.

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). This standard gives full play to the responsibility of the trier of

fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).


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      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

B. Analysis

      As authorized by the indictment here, a person commits burglary of a

habitation if he intentionally or knowingly, without the effective consent of the

owner, enters a habitation either with the intent to commit a theft or, while there,

he commits or attempts to commit a theft.            See Tex. Penal Code Ann.

§ 30.02(a)(1), (3) (West 2011).        Theft occurs when a person unlawfully

appropriates property with intent to deprive the owner of property, i.e., without the

owner’s effective consent. Id. § 31.03(a), (b)(1) (West 2011 & Supp. 2012).

      Johnson does not dispute that he entered the habitation without

permission; instead, he argues that he did not commit or attempt to commit a

theft. In his opening brief, he complains that his ―placing the costume jewelry


                                         5
and curtain chains into his duffel bag were only mere preparation for a future

theft that would—presumably—occur at some point in the future after he awoke

from his nap.‖     However, in his reply brief, Johnson further argues that ―the

record is devoid of evidence that [he] put the items in his duff[el] bag,‖

contradicting his opening brief, in which he also argued that he ―had prepared to

steal the costume jewelry and curtain chain by concealing them in his duffel bag.

But that’s as far as he had gotten.‖ As set out above in our factual recitation,

Johnson denied putting the property in his duffel bag and said that he saw the

police plant it; a police officer testified that she found the property in Johnson’s

bag, and Rogers testified that he saw the police bring the bag out, open it, and

take the jewelry out of it.

      ―[W]here the evidence shows there was a reduction of the property to the

control and manual possession of the defendant, removal of the property from

the premises is not necessary for commission of the offense of theft.‖ Baker v.

State, 511 S.W.2d 272, 272 (Tex. Crim. App. 1974). Asportation—the act of

carrying away or removing property—is not an element of theft; only the intent to

deprive, not actual deprivation, must be proven. Hawkins v. State, 214 S.W.3d

668, 670 (Tex. App.—Waco 2007, no pet.). Based on the record here, if the jury

chose to disbelieve Johnson and resolved any conflicting inferences in the

testimony against him, then the jury could have reasonably concluded that

Johnson had obtained control and possession over the property by placing it in

his duffel bag before he settled down for his nap. See id; see also Tex. Code


                                         6
Crim. Proc. Ann. art. 38.04; Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise,

364 S.W.3d at 903.

      Further, as here, when a jury returns a general guilty verdict on an

indictment charging alternate methods of committing the same offense, the

verdict will stand if the evidence is sufficient to support a finding of guilt based on

at least one of the valid theories. See Sanchez v. State, 376 S.W.3d 767, 773–

74 (Tex. Crim. App. 2012) (op. on reh’g); see also Grissam v. State, 267 S.W.3d

39, 41 (Tex. Crim. App. 2008) (stating that when two theories of burglary were in

the charge, sufficiency of the evidence should have been measured against the

requirements for conviction under either theory). Because the jury had sufficient

evidence upon which to conclude that Johnson, after entering the habitation

without the owner’s effective consent, had committed theft by exercising control

and possession over the property, the jury could have found him guilty beyond a

reasonable doubt of burglary instead of criminal trespass.              We overrule

Johnson’s sole issue.




                                          7
                                  IV. Conclusion

      Having overruled Johnson’s sole issue, we affirm the trial court’s judgment.



                                                  BOB MCCOY
                                                  JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 29, 2012




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