Opinion filed July 19, 2018




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-16-00332-CR
                                  __________

                      MARIO A. BARRERA, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

                      On Appeal from the 32nd District Court
                              Fisher County, Texas
                           Trial Court Cause No. 3499

                      MEMORANDUM OPINION
       The jury found Mario A. Barrera guilty of burglary of a habitation and
assessed his punishment at confinement for three years. The trial court sentenced
Appellant accordingly. On appeal, Appellant raises three issues. We affirm.
                                I. Background Facts
       David Noles hired Appellant to work on his mother’s house. The house had
been vacant for about a year. Noles testified that another family member had
previously lived in the house and stored “junk” in it. Appellant contacted Noles and
offered to clean up and maintain the yard.
       When Appellant came to the house, he asked Noles for permission to take
certain items. Noles agreed that Appellant could fix up an old golf cart, and he
allowed Appellant to take a coffee maker and some meat from the freezer. Noles
testified that, other than those items, he did not give Appellant permission to take
and sell anything else.
      Noles testified that he kept the doors to the house locked. One day, however,
Noles came in through the back door and discovered that someone had rummaged
through the house. Noles contacted the sheriff’s office, and Deputy Shane Baxter
came to investigate.
      Noles and Deputy Baxter went to the basement and saw that the door was
broken and appeared to have been “kicked in.” Noles testified that several items
were missing.     For some of those items, Deputy Baxter later brought Noles
pawnshop tickets, which listed Appellant’s name.
      Appellant denied that he entered the house without Noles’s permission, and
he testified that he had permission to take the items that he sold to the pawnshop.
Appellant admitted, however, that he had kicked down a door during another
criminal offense. The jury found Appellant guilty of burglary of a habitation.
                                       II. Analysis
      In his first issue, Appellant asserts that the trial court erred when it refused to
grant his motion for change of venue. Second, Appellant contends that the State
adduced insufficient evidence because the house did not qualify as a “habitation”
under the statute. In his third issue, Appellant argues that he is entitled to a new trial
because the State failed to turn over material evidence before trial. We address
Appellant’s second issue first, followed by his first and third issues.
          A. Issue Two: The State adduced sufficient evidence to establish
             that the vacant house was a “habitation” under Section 30.02 of
             the Texas Penal Code.
      In his second issue, Appellant contends that the evidence was legally
insufficient to support a finding that the vacant home was a “habitation.” Appellant


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emphasizes the fact that the house was being used for storage at the time of the
offense, rather than as a habitation.
                 1. Standard of Review
      The standard of review for sufficiency of the evidence is whether any rational
jury could have found Appellant guilty beyond a reasonable doubt of the charged
offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); see 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 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).
                 2. Sufficiency of Evidence for Offense of Burglary of
                    a Habitation
      A person commits burglary of a habitation if the person enters a habitation
without the owner’s consent and commits a theft.             TEX. PENAL CODE ANN.
§ 30.02(a)(3), (c)(2) (West Supp. 2017). “‘Habitation’ means a structure or vehicle
that is adapted for the overnight accommodation of persons . . . .” Id. § 30.01(d).
The determination of what constitutes a structure that has been adapted for overnight

                                           3
accommodation “is a complex, subjective factual question fit for a jury’s
determination.” Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989)
(op. on reh’g); Parrick v. State, No. 11-12-00161-CR, 2013 WL 5303754, at *2
(Tex. App.—Eastland Sept. 19, 2013, no pet.) (mem. op., not designated for
publication). We consider relevant factors such as “whether someone was using the
structure as a residence at the time of the burglary; whether the structure ‘contained
bedding, furniture, utilities, or other belongings common to a residential structure’;
and whether the structure was of such character that it was likely intended to
accommodate persons overnight.” Parrick, 2013 WL 5303754, at *2 (quoting
Blankenship, 780 S.W.2d at 209). We will overturn the jury’s determination “only
if no reasonable trier of fact could have found the structure to have been adapted for
the overnight accommodation of persons beyond a reasonable doubt.” Id.
      In Parrick, the character of a vacant house indicated that it was intended for
overnight accommodations. See id. The house had been vacant for one to two
weeks, and it “contained scant furniture and no bedding, food, cooking utensils, or
hygiene items.” Id. However, the house had “a kitchen, living room, bathroom, and
bedrooms.” Id. “The house was wired for electricity and equipped for utility
service,” and “a property manager actively checked” its condition. Id. The court
also noted that the owners “retained a possessory right to occupy the house and could
have slept there overnight.” Id. Although no one was currently living in the house,
there was sufficient evidence it was a habitation because the character of the
structure indicated that it was intended for overnight accommodation. Id.
      In this case, like in Parrick, there was sufficient evidence that the vacant house
was a habitation. Deputy Baxter testified that there were beds in the house and that
it was almost fully furnished. Noles was preparing to sell the house. The house had
electricity and running water. Noles replaced the locks on the doors, and he testified
that he had slept in the house. Granted, the house had been vacant for about a year
                                           4
and was being used for storage.        However, given the testimony that various
characteristics of the house indicated that it was intended for overnight
accommodation, we cannot say that the jury was unreasonable in finding that the
house was a habitation. We overrule Appellant’s second issue.
          B. Issue One: The trial court did not abuse its discretion when it
             denied Appellant’s motion for change of venue.
      In his first issue, Appellant argues that the trial court erred when it denied his
motion for change of venue because “enough of the citizens of Fisher County have
a long-standing prejudice against him in all matters, precluding a fair trial no matter
what the charge,” and because there was a dangerous combination of influential
persons against him.
                1. Standard of Review
      We review a trial court’s decision to deny a motion for change of venue for
an abuse of discretion. Gonzalez v. State, 222 S.W.3d 446, 449 (Tex. Crim. App.
2007); Billings v. State, 399 S.W.3d 581, 591 (Tex. App.—Eastland 2013, no pet.).
A trial court may grant a change of venue to a defendant if (1) “there exists in the
county where the prosecution is commenced so great a prejudice against him” or
(2) there is “a dangerous combination against him instigated by influential persons”
that would prevent him from receiving a fair and impartial trial. TEX. CODE CRIM.
PROC. ANN. art. 31.03(a) (West 2006).
                2. First Statutory Basis: Great Prejudice
      To obtain a change of venue based on a great prejudice, the defendant “bears
a heavy burden to prove the existence of such prejudice in the community, that the
likelihood of obtaining a fair and impartial trial jury is doubtful.” Renteria v. State,
206 S.W.3d 689, 709 (Tex. Crim. App. 2006). A court should change venue if “the
outside influences affecting the community climate of opinion as to a defendant are
inherently suspect.” Id. We look to several factors to determine “whether outside

                                           5
influences affecting the community climate of opinion as to a defendant are
inherently suspect”:
      (1) the nature of pretrial publicity and the particular degree to which it
      has circulated in the community, (2) the connection of government
      officials with the release of the publicity, (3) the length of time between
      the dissemination of the publicity and the trial, (4) the severity and
      notoriety of the offense, (5) the area from which the jury is to be drawn,
      (6) other events occurring in the community which either affect or
      reflect the attitude of the community or individual jurors toward the
      defendant, and (7) any factors likely to affect the candor and veracity
      of the prospective jurors on voir dire.

Henley v. State, 576 S.W.2d 66, 71–72 (Tex. Crim. App. 1978).
      Before the hearing on Appellant’s motion for change of venue, Appellant
submitted affidavits from Fisher County residents—including himself, his mother,
and two longtime acquaintances, Jaime Amador and Kayce King—who testified as
to their belief that Appellant would not be able to have an impartial jury in that
county. The affidavits made these basic points: Appellant’s criminal charges were
the “talk of the town,” and the rumor was that Appellant was guilty. Local
newspapers referenced Appellant’s charges.         And well-known witnesses were
expected to testify against Appellant at trial.
      The State filed a controverting affidavit from Deputy Baxter. Deputy Baxter
stated that he personally knew King, Appellant, and Appellant’s mother, and Deputy
Baxter did not believe that they were credible witnesses. Deputy Baxter also stated
that he “ha[d] not heard anything from Fisher County residents suggesting that
[Appellant] could not receive a fair and impartial trial in Fisher County, Texas.”
      At the hearing on the motion for change of venue, Appellant and four other
witnesses testified that they believed Appellant could not receive a fair trial in Fisher
County. Appellant said that his children’s friends told them that their parents said
things like, “I heard your daddy’s nothing but a thief.” Appellant testified that some
of the State’s potential witnesses were influential members in the community,
                                           6
including former city employees and the city manager. Appellant also believed that
Deputy Baxter had influence over the judicial proceedings in Fisher County.
      Appellant also testified that people in the community expressed a negative
demeanor toward him in public places. Appellant admitted on cross-examination
that he had been accused of theft and that he had been arrested in the past.
Additionally, Appellant admitted that he previously had been convicted of assault
causing bodily injury to a family member and that he had been arrested for theft of
property.
      Three of Appellant’s other witnesses—Penny Kizer, Cathy Spencer, and
Brian Dickson—testified that rumors about Appellant might affect his opportunity
to receive a fair trial in Fisher County. Additionally, Spencer testified that certain
people in the community had been “spearheading that campaign” against Appellant.
However, each of these three witnesses admitted that they were biased in favor of
Appellant.
      Appellant’s fourth witness, Patricia Hurt, testified that she had known
Appellant for a long time but that she believed she could be fair and impartial
concerning his case. Hurt was the owner of the local newspaper. Hurt testified that
the local newspaper published only facts and nothing inflammatory. Indeed, the
newspaper articles that were admitted into evidence merely reported that Appellant
had been indicted and arrested for the alleged offense. However, Hurt testified that
social media comments that occurred three years prior to the hearing had damaged
Appellant’s reputation. Because of that social media attention, Hurt believed that it
would be difficult for Appellant to receive a fair trial in Fisher County.
      Deputy Baxter also testified at the hearing. He confirmed that there were local
meetings about preventing crime in general and that there were discussions about
Appellant, in particular, being involved with thefts. Deputy Baxter knew Appellant
and had investigated Appellant in past criminal matters. However, Deputy Baxter
                                           7
testified that he did not “have anything personal against [Appellant]” and that he did
not attend any of the local meetings about crime in Fisher County. At the time of
the hearing, Deputy Baxter was involved in a write-in campaign to become the
county sheriff. When asked whether he could influence a judicial proceeding in
Fisher County, Deputy Baxter said, “I don’t want people to think that I could
influence one way or the other actually. And to be truthful, I don’t know if I could
influence it or not.” Deputy Baxter testified that he believed that Appellant could
receive a fair and impartial trial.
      After hearing the testimony and considering the affidavits, the trial court
stated, “[I]t sounds like there’s a general reputation issue more than the fear of
anything for this offense, that this particular offense that is charged. Much of what
you’re talking about happened before the charge . . . contained within indictment
3499.” The trial court then denied the motion and issued a written order. Appellant
did not request findings of fact and conclusions of law.
      Appellant concedes that pretrial publicity did not jeopardize his right to a fair
trial but asserts that his general reputation in the community was so poor that it
created such prejudice against him that he could not obtain a fair trial in Fisher
County.     However, Appellant concedes that the pretrial publicity was not
inflammatory. In addition, there was no evidence in the record that Deputy Baxter,
the city manager, or any other government official identified by Appellant had any
connection to publicity about Appellant or this case. In addition, three years had
passed between negative social media attention and the hearing.
      Appellant argues that the trial court orally acknowledged during the hearing
that Appellant had “a general reputation issue.” But in the absence of findings of
fact and conclusions of law, we “must view the evidence ‘in the light most favorable
to the trial court’s ruling’ and ‘assume that the trial court made implicit findings of
fact that support its ruling as long as those findings are supported by the record.’”
                                           8
Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006) (quoting State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)). Deputy Baxter asserted in his
affidavit that Appellant could receive a fair trial. And, at the hearing, the prosecutor
elicited admissions from three of Appellant’s witnesses that they had a personal bias
in favor of Appellant. The trial court weighed Hurt’s testimony about old social
media comments against Deputy Baxter’s testimony that Appellant could receive a
fair trial. On this record, we cannot say that the trial court abused its discretion when
it denied Appellant’s motion because Appellant had not met the great prejudice
standard.
                 3. Second Statutory Basis: Dangerous Combination
      Appellant also complains that there was a dangerous combination against him.
Under the second statutory basis concerning a dangerous combination of influential
persons, the defendant must show that “the actions of a small but influential or
powerful group . . . are likely to influence in some manner the way in which the trial
proceeds.” Ryser v. State, 453 S.W.3d 17, 36 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d) (quoting George E. Dix & John M. Schmolesky, 42 Texas Practice:
Criminal Practice and Procedure § 30.11 (3d ed. 2011)). Cortez provides an
extreme example. Cortez v. State, 69 S.W. 536, 537–38 (Tex. Crim. App. 1902). In
Cortez, about sixty or seventy influential residents donated money toward the effort
to arrest the defendant, while some of those residents participated in a posse that
pursued the defendant and later served as witnesses. Id. Once the defendant was
apprehended, law enforcement had to transfer him to a jail in another county due to
fears of mob violence. Id.; see Ryser, 453 S.W.3d at 36–37. In contrast to Cortez,
in Stanley, “one witness characterized the victim’s father as a ‘powerful man’” in
the county, but the witness’s testimony provided no basis for the statement.
Stanley v. State, 664 S.W.2d 746, 753 (Tex. App.—San Antonio 1983, pet. ref’d).


                                           9
That testimony fell “far short of disclosing a dangerous combination” against the
defendant. Id.
       The case before this court more closely resembles Stanley, although a
defendant does not have to show threats of mob violence to prevail at trial. In
Appellant’s case, he identified the city manager, a former employer, and Deputy
Baxter as individuals who he believed were trying to influence his trial. Appellant
alleged in his affidavits that the State’s witnesses were well known, and one witness
testified that she believed some individuals were leading a “campaign” against
Appellant. However, that witness admitted that she was biased in favor of Appellant,
and on cross-examination, Appellant admitted that he had no knowledge that anyone
other than Deputy Baxter had anything to do with whether his case was prosecuted.
Appellant could not identify anyone outside of the State’s witnesses who he believed
had influenced the proceedings. Because Deputy Baxter testified that he did not
want to influence the trial and that he did not attend any of the local meetings about
crime, the trial court could have found that there was no basis for the testimony about
influential persons influencing the trial. As a result, Appellant failed to show that
the trial court abused its discretion when it denied the motion for change of venue
on this second statutory basis of dangerous combination. We overrule Appellant’s
first issue.
           C. Issue Three: Appellant failed to preserve his complaint on the
              State’s failure to turn over allegedly material evidence because
              he failed to timely present the issue to the trial court.
       In Appellant’s third issue, he argues that he is entitled to a new trial because
the State failed to turn over, until after trial, what he alleged was material evidence.
Although Appellant raised this issue in a motion for new trial with the trial court and
filed a motion with this court to abate this appeal, the former was never heard and
the latter was denied because a review of the record reflects that Appellant failed to
timely file his motion for new trial. Criminal defendants must file a motion for new
                                          10
trial no later than thirty days after sentencing. TEX. R. APP. P. 21.4. If an original
motion for new trial is filed beyond that deadline, the trial court has no jurisdiction
to consider it. See State v. Moore, 225 S.W.3d 556, 566–67, 569 (Tex. Crim. App.
2007); State v. Holloway, 329 S.W.3d 247, 251 (Tex. App.—Texarkana 2010), aff’d,
360 S.W.3d 480 (Tex. Crim. App. 2012). At the time that Appellant filed his motion
for new trial, the trial court had lost jurisdiction because more than four months had
passed since Appellant was sentenced and because this court had already filed the
appellate record in this cause. See Moore, 225 S.W.3d at 568–69; see also TEX. R.
APP. P. 21.4(a), 21.8(a), 25.2(g). Because Appellant’s motion was untimely and the
trial court could not consider it, Appellant failed to preserve his complaint for our
review. See TEX. R. APP. P. 33.1(a). We overrule Appellant’s third issue.
                                        III. This Court’s Ruling
        We affirm the judgment of the trial court.


                                                                   MIKE WILLSON
                                                                   JUSTICE


July 19, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1




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