                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-12-00316-CR

                                          Shawn Pierre LEE,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010CR6846
                           Honorable George H. Godwin, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 30, 2014

AFFIRMED

           This case stems from Appellant Shawn Pierre Lee’s conviction of the offense of burglary

of a habitation with the intent to commit aggravated assault. After finding Lee guilty, the jury

assessed punishment at thirty-five years confinement in the Institutional Division of the Texas

Department of Criminal Justice and elected not to impose a fine. On appeal, Lee contends (1) the

statement of an unavailable witness was improperly excluded under evidentiary Rule 804(b), (2)
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the trial court erred in refusing to give instructions on self-defense and necessity, and (3) the

evidence is legally insufficient to support the jury’s verdict. 1 We affirm the trial court’s judgment.

                               TRIAL TESTIMONY AND PROCEDURAL HISTORY

           Our opinion requires consideration of the trial testimony and the procedural history of the

case.

A.         Trial Testimony

           The testimony considered by the jury came from a litany of witnesses; we focus our

attention on the alleged victim, Joel Michael Patterson, Jr., his live-in girlfriend and mother of

Lee’s infant daughter, Raven Riley, and the San Antonio Police officers and ballistic experts.

           1.       Joel Michael Patterson, Jr.

           Patterson testified that he was living with Riley at the relevant time. He explained that the

night before the incident, or April 2, 2010, he and Riley went to a Spurs game and then, about

11:00 p.m., they went to pick up Riley’s daughter from Lee. Because of previous problems with

Lee, Patterson and Riley called the police to assist in the exchange of custody.

           Patterson explained that, the following morning, he and Riley argued and he began

throwing her belongings out of the apartment. The next thing Patterson remembers was Lee

“walk[ing] in my house with a gun pointed at [Riley’s] head saying, ‘I’m going to get you-all, I’m

going to get you.’” Patterson testified he grabbed the barrel of the gun with his hand, grabbed

Riley, and tried to throw Riley out of the room. Although Patterson did not realize it at the time,

Lee had already fired a shot hitting Patterson’s hand.

           Patterson continued fighting with Lee to get the gun. Lee then pressed the gun against

Patterson’s face and shot him, knocking Patterson’s teeth out of his mouth. Patterson remembers



1
    For organizational purposes, the sequence of the issues presented by Appellant was changed.

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more fighting and then Lee standing over him with the baby in his arms. Before leaving, Lee shot

Patterson in the torso, striking Patterson’s liver and lungs.

       During his testimony, Patterson was adamant that he did not have any weapons, particularly

a gun, at the apartment. Although he could not testify positively, Patterson conceded the door was

probably open when Lee arrived at the apartment. He further acknowledged screaming at Riley

to grab the baby and leave the apartment but that Riley left the apartment without the baby.

       2.      Raven Riley

       Riley testified that on the night in question, she had been living with Patterson for a couple

of months. The night before the incident, she and Patterson requested police assistance at Lee’s

house because Lee had refused to answer her calls about picking up her daughter. Riley testified

that on the morning of April 3, 2010, she and Patterson were arguing; he told her to get out of the

apartment and she began packing her bags. While in the bathroom, Riley heard a shot and then

turned around to see Lee dressed in all black.

       After Lee had shot Patterson the first time, Riley witnessed Lee walk towards Patterson

and shoot him again. She then ran out of the apartment and heard the third shot. Outside, she

called 911, and then saw Lee run off with the baby. As to the gun, Riley testified that she was

aware that Lee owned a gun. She also remembered a conversation between Lee and Patterson

about a gun, but she could not remember any details.

       Riley admitted that the State removed all four of her children from her care. On cross-

examination, Riley explained that, during the week of the shooting, she had been staying at Lee’s

house. Patterson, on the other hand, was staying at her apartment, the location of the shooting.

She acknowledged that Patterson was throwing her out of her own apartment.




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       3.        San Antonio Police Officers and Ballistics Experts

       Several San Antonio police officers and crime scene investigators testified as to the

collection of three shell casings and two bullet fragments at the apartment, as well as two gun

boxes at Lee’s residence. The State called firearms expert Edward Wallace who testified that all

three cartridges were fired from the same weapon. Additionally, he testified that, in his opinion,

both the bullet fragments and the shell casings were fired from a .9 mm Smith and Wesson

handgun.

B.     Procedural History

       In his case in chief, Lee’s counsel made attempts to (1) introduce into evidence, through

two police officers, a DVD showing an interview of Lee by the police, and (2) request that the trial

court attach a subpoenaed witness, Brad Collins, who failed to appear at trial. The trial court

granted the State’s objections to the DVD based on improper predicate and hearsay, and denied

Lee’s request to attach the witness. Lee’s counsel subsequently offered Collins’s statement

pursuant to the unavailable witness hearsay exception. The State objected, and the court sustained

the objection.

       After the parties rested, defense counsel requested jury instructions on: (1) self-defense,

(2) necessity, and (3) defense of a third person. After reviewing each submission, the court made

a determination that the evidence did not support any of the requested instructions and denied the

requested instructions.

       Neither Collins’s statement nor any of the defense’s requested instructions was included in

the appellate record. On March 20, 2014, this court abated the appeal and ordered the trial court

to determine if these documents were either lost or destroyed in accordance with Texas Rule of

Appellate Procedure 34.6(f)(4); and if so, the trial court was ordered to make a determination of

whether the exhibits could be replaced by agreement of the parties or with a copy the trial court
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determined to accurately duplicate with reasonable certainty the original exhibits. See TEX. R.

APP. P. 34.6(f)(4).

       On April 10, 2014, the trial court conducted a hearing and determined the original trial

exhibits were lost. After hearing testimony from the trial prosecutor, reviewing documents

submitted by the staff attorney from the Bexar County Criminal District Courts, and reviewing the

reporter’s record from the trial, the trial court determined the exhibits offered in the supplemental

reporter’s record “accurately duplicate, with reasonable certainty, the original trial exhibits.” For

the purposes of this appeal, this court incorporated the documents produced at the April 10, 2014

hearing as part of the appellate record.

C.     Issues on Appeal

       On appeal, Lee argues: (1) the trial court erred in excluding Brad Collins’s statement, (2)

the trial court erred in failing to include self-defense and necessity instructions in the court’s

charge, and (3) the evidence is insufficient to support the trial court’s judgment. We address each

separately.

                             STATEMENT BY UNAVAILABLE WITNESS

       Lee argues the trial court erred by refusing to allow Lee to introduce the statement made

by Brad Collins, an unavailable witness, into evidence under a hearsay exception. See TEX. R.

EVID. 804(b)(1).

A.     Standard of Review

       We review a trial court’s decision on whether to admit former testimony under rule

804(b)(1) for an abuse of discretion. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994)

(en banc); accord Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); see also TEX. R.

EVID. 804(b)(1). We do not conduct a de novo review, but instead limit our role to determining

whether the record supports the trial court’s ruling. Coffin, 885 S.W.2d at 149. The trial court’s
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exclusion of testimony is an abuse of discretion only if the decision lies outside the zone of

reasonable disagreement. See id.; accord Zuliani, 97 S.W.3d at 595; Wilson v. State, 195 S.W.3d

193, 202 (Tex. App.—San Antonio 2006, no pet.).

B.      Argument of the Parties

        Lee contends that because both the State and the defense subpoenaed Collins, the trial court

erred in denying Lee’s request to attach Collins to procure his testimony. Lee argues that based

on the trial court’s failure to issue an order of attachment, Collins was unavailable to testify;

because Collins was unable to testify, the trial court should have allowed Collins’s previous

statement to be offered into evidence.

        The State counters that Rule 804(b)(1) requires more than unavailability, it must also be

the kind of testimony admissible pursuant to Rule 804(b)(1). TEX. R. EVID. 804(b)(1).

C.      Proffered Statement

        In determining whether the trial court abused its discretion in excluding the proffered

testimony, we first consider the testimony in question. Collins’s entire statement 2 provided as

follows:

        My Name is Brad Collins.
        I am 42.
        I completed high school.
        I can read, write and understand the English language.

        I live in apartment in 906B at 8170 Cross Creek Apt 609B. The shooting took
        place in the first floor of my building; they had only been in there about 2 months
        at the most. I was home today and I was taken out the trash I heard three pops
        and I looked over to the apartment where the shots came from. I saw the female
        come out of the apartment and she was talking on the phone calmly. I saw a
        man running with a baby in his arms. It did not look like he had a gun because
        of the way he was carrying the baby. He ran around 3 buildings and then ran
        past me. I drew a diagram to explain how they were. Then after about 2 minutes


2
 We note Collins’s statement contains several inconsistencies and typographical errors. The statement contained
within this opinion is unchanged from the statement offered by the defense.

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          the person who was shot came out and walked toward me and collapsed on the
          sidewalk. Then the girl started yelling ‘ My baby”.

          I have seen the man before he is the daddy of the baby. He has been in that
          apartment before when the complainant is out.

          The man with the baby was wearing all black, hoodie, and pants. When he was
          running he was holding the baby in his arms like a football and holding his pants
          up with the other. I got in my van and tried to follow him but I was not able too.
          He got in a black truck with silver trim. He was not driving the truck it had been
          parked waiting for him. He comes everyday in a different vehicle and a different
          driver.

          She did not chase him when he ran off with the baby. She did not go after him.
          Det. Estrada showed me a photoline up and I told her I think it was number 5
          but it could be # 3.

          I have read this statement and everything is this statement is true and correct.
          This incident occurred in San Antonio, Bexar County, Texas.

The typed statement was printed on a prepared form, indicating that Detective Cheri Estrada took

the statement on April 3, 2010 at 3:00 p.m. The statement was signed by Collins, but not notarized.

D.        Exceptions to the Hearsay Rule

          Hearsay is defined as an out-of-court statement offered for the truth of the matter asserted.

TEX. R. EVID. 801(d). Hearsay testimony is inadmissible except as provided by statute or the rules

of evidence. TEX. R. EVID. 802. Rule 804(b) provides one such exception. See TEX. R. EVID.

804(b).

          Rule 804(b)(1) allows the admission of “testimony given as a witness at another hearing

of the same or a different proceeding, if the party against whom the testimony is now offered had

an opportunity and similar motive to develop the testimony by direct, cross, or redirect

examination” if a declarant is unavailable as a witness. TEX. R. EVID. 804(b)(1). Assuming,

without deciding, Collins was unavailable under Rule 804(b)(1), the hearsay exception requires

the witness’s statement be former testimony. Id.



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       At the time Collins’s statement was taken, no counsel was present, not counsel for the State

and not defense counsel. The statement was neither notarized nor sworn to as part of a judicial

proceeding. There was no examination to develop the assertions contained in the statement by

direct, cross, or redirect examination. See TEX. R. EVID. 804(b)(1); cf. Coffin, 885 S.W.2d at 147.

After a review of the record, we conclude Collins’s unsworn statement was not testimony under

Rule 804(b)(1). Accordingly, the trial court’s exclusion of the testimony was not an abuse of its

discretion. See Coffin, 885 S.W.2d at 149. We overrule this issue.

                         SELF-DEFENSE AND NECESSITY INSTRUCTIONS

       Lee next argues that the trial court erred in failing to include defensive instructions in the

court’s charge. Although Lee requested three defensive instructions, he only alleges error as to

the trial court’s denial of the self-defense and necessity instructions. We limit our discussion to

the two requested instructions briefed on appeal.

A.     Standard of Review

       Our first duty in analyzing a jury-charge issue is to decide whether error exists. Barrios v.

State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005)). A trial court’s decision to deny a defensive issue in a jury charge is

reviewed for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App.

2000). When reviewing a trial court’s decision to deny a requested defensive instruction, we view

the evidence in the light most favorable to the defendant’s requested submission. Bufkin v. State,

207 S.W.3d 779, 782 (Tex. Crim. App. 2006).

       If error exists, we must determine whether the error caused sufficient harm to warrant

reversal. Ngo, 175 S.W.3d at 743–44. Because Lee properly objected, we determine whether “the

error appearing from the record was calculated to injure” his rights, i.e., whether there was “some

harm.” Id.; Almanza v. State, 686 S.W.2d 157, 160 (Tex. Crim. App. 1984); see TEX. CODE CRIM.
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PROC. ANN. art. 36.19 (West 2006). In assessing harm, we consider the jury charge as a whole,

the arguments of counsel, all of the evidence “including the contested issues and weight of the

probative evidence,” and any other relevant factors in the record. Wooten v. State, 400 S.W.3d

601, 606 (Tex. Crim. App. 2013).

B.     Jury Charge Instructions

       A trial court is required to submit a jury charge that sets out the law “applicable to the

case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The trial court is required to instruct

the jury on statutory defenses, affirmative defenses, and justifications when they are raised by the

evidence and requested by the defendant. Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim.

App. 2007); see also Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998) (holding trial court

has no duty to sua sponte instruct jury on unrequested defensive issues). “A defendant is entitled

to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is

strong or weak, unimpeached or contradicted, and regardless of what the trial court may think

about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001);

accord Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). “Raised by the evidence”

means “there is some evidence, from any source, on each element of the defense that, if believed

by the jury, would support a rational inference that th[e] element is true.” Shaw v. State, 243

S.W.3d 647, 657–58 (Tex. Crim. App. 2007).

       The purpose of this rule is to ensure that the jury, not the trial court, decides the relative

credibility of the evidence. Id. at 655. Defensive issues may be raised by the testimony of any

witness. VanBrackle v. State, 179 S.W.3d 708, 712–13 (Tex. App.—Austin 2005, no pet.). In

determining whether the testimony raised a defensive theory, the evidence is viewed in the light

most favorable to the defendant. Id.



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C.     Arguments of the Parties

       Lee contends the trial court erred in failing to include instructions on self-defense and

necessity. Lee argues the defenses were raised, in part, by the DVD of Lee’s statement excluded

from evidence. Lee further argues that Riley’s and Patterson’s testimony, regarding arguments

and threats made before the shooting, likewise raised these issues.         Without the requested

instructions, Lee contends he was unable to provide a defense to the actions taken on the day of

the incident.

       The State counters that because the DVD statement was never introduced, it could not have

raised the issue and the record does not support that Riley and Patterson testified to arguments and

threats prior to the shooting. However, even assuming there was such testimony, there was no

evidence that these threats caused Lee to reasonably believe force was immediately necessary to

protect himself against another’s use or attempted use of unlawful force. See TEX. PENAL CODE

ANN. § 9.31(a) (West 2011).

D.     Self-Defense

       “[A] person is justified in using force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor against the other’s use

or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a). A “‘[r]easonable belief’

means a belief that would be held by an ordinary and prudent man in the same circumstances as

the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42) (West 2011). To justify the use of deadly force

against another, an actor must first show he reasonably believed the force was immediately

necessary to protect the actor against the other’s use or attempted use of unlawful force. TEX.

PENAL CODE ANN. §§ 9.31(a), 9.32(a). “A defensive instruction is only appropriate when the

defendant’s defensive evidence essentially admits to every element of the offense including the

culpable mental state, but interposes the justification to excuse the otherwise criminal conduct.”
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Shaw, 243 S.W.3d at 659 (emphasis in original). The evidence must be such that it will support a

rational jury finding as to each element of that defense. Id. at 658.

       Lee was entitled to a self-defense instruction if evidence was presented that, if believed,

showed that Lee reasonably believed his use of deadly force was immediately necessary to protect

himself against Patterson’s use or attempted use of deadly force. See Morales v. State, 357 S.W.3d

1, 4 (Tex. Crim. App. 2011). Lee points to the testimony contained within the excluded DVD and

the alleged threats and arguments prior to the shooting with Riley and Patterson. The testimony,

however, supports that Lee came to the apartment with a gun, entered the apartment and

immediately threatened Riley and Patterson. While Riley ran from the apartment, Lee shot an

unarmed Patterson three different times. If anyone was provoked, the testimony supports that it

only could be Patterson, not Lee.

       Viewing the testimony and evidence in the light most favorable to Lee, we cannot agree

with Lee’s contention that the trial court erred by denying his requested jury instruction. See

VanBrackle, 179 S.W.3d at 712–13. No evidence showed that Lee believed he needed to use

deadly force to protect himself. See TEX. PENAL CODE ANN. § 9.31(a).               Instead, the two

eyewitnesses describe Lee acting out in anger, not via a protective instinct, in pursuing the unarmed

Patterson as he attempted to escape from Lee. Additionally, the record does not reveal that

Patterson used or attempted use of deadly force throughout the entire confrontation. See TEX.

PENAL CODE ANN § 9.01(3) (West 2011). Accordingly, we overrule this issue.

E.     Necessity

       The defense of necessity is defined in section 9.22 of the Texas Penal Code. A party’s

“conduct is justified if . . . the actor reasonably believes the conduct is immediately necessary to

avoid imminent harm.” TEX. PENAL CODE ANN. § 9.22(1) (West 2011). Conduct, in turn, is

defined in Penal Code Section 1.07(a)(10) as “an act or omission and its accompanying mental
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state.” Id. § 1.07(a)(10). In Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010), the

Court of Criminal Appeals clarified any previous confusion and unambiguously held “the

[necessity] doctrine requires an admission to the conduct, which includes both the act or omission

and the requisite mental state.”

         As with self-defense, there was no evidence establishing that Lee reasonably believed his

use of deadly force was immediately necessary to avoid imminent harm. See TEX. PENAL CODE

ANN. § 9.22(1). The only link between the chaos Lee encountered when he arrived at the apartment

and the concerns about the welfare and safety of his daughter and the subsequent shooting comes

from Lee’s counsel’s arguments. Arguments of counsel are not testimony. Banda v. Garcia, 955

S.W.2d 270, 272 (Tex. 1997) (per curiam) (holding unsworn attorney statements generally do not

constitute evidence); accord Ardmore, Inc. v. Rex. Grp., Inc., 377 S.W.3d 45, 62 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied). Because neither Lee nor any other witness, testified or

admitted Lee believed that shooting Patterson was immediately necessary to avoid harm and

danger to his infant child, Lee was not entitled to a necessity instruction, and the trial court did not

err in refusing his request. Lee’s issue is overruled.

                                   INSUFFICIENCY OF THE EVIDENCE

         Lee’s last argument contends the evidence is legally insufficient to support the jury’s

verdict. Lee asserts the record fails to support each element of the offense beyond a reasonable

doubt.

A.       Standard of Review

         In reviewing the legal sufficiency of the evidence, an appellate court determines whether,

viewing “all the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt.” Hardy v. State, 281

S.W.3d 414, 421 (Tex. Crim. App. 2009); accord Brooks v. State, 323 S.W.3d 893, 899 (Tex.
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Crim. App. 2010); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must defer to the

jury’s assessment of the credibility of the witnesses “and the weight to be given [to] their

testimony,” Brooks, 323 S.W.3d at 899, and allow for reasonable inferences from the evidence

presented. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also TEX. CODE

CRIM. PROC. ANN. art. 38.04 (West 1979) (stating that “[t]he jury, in all cases, is the exclusive

judge of the facts proved, and of the weight to be given to the testimony” except where provided

otherwise by law); Jackson, 443 U.S. at 319 (reiterating it is strictly the province of the jury “fairly

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts”). In so doing, an appellate court presumes that the jury “resolved

the conflicts in favor of the prosecution and therefore defer to that determination.” Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

        The key question is whether “the evidence presented actually supports a conclusion that

the defendant committed the crime that was charged.” Williams, 235 S.W.3d at 750. Only upon

a finding the evidence is legally insufficient will this court reverse the trial court’s judgment and

order an acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982). This legal sufficiency standard

applies equally to both direct and circumstantial evidence. Clayton, 235 S.W.3d at 778; King v.

State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

B.      Argument of the Parties

        Lee bases his insufficiency argument on the lack of reliability in the eye-witness testimony

and the fact that the testimony was not developed to see the “true and correct story.”

        The State counters that the evidence established each element of the offense and Lee’s

argument that the testimony was unreliable and biased is a question left within the province of the

jury.



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C.     Burglary of a Habitation with Intent to Commit Aggravated Assault with a Deadly
       Weapon

       A person commits an offense if, without the effective consent of the owner, he enters a

habitation with the intent to commit a felony, theft, or an assault. TEX. PENAL CODE ANN.

§ 30.02(a) (West 2003). Intent is generally proven by circumstantial evidence. Dillon v. State,

574 S.W.2d 92, 94 (Tex. Crim. App. 1978); accord Kelley v. State, 429 S.W.3d 865, 872 (Tex.

App.—Houston [14th Dist.] 2014, no pet.).         While proof of intent cannot rely simply on

speculation and surmise, the factfinder may consider the defendant’s conduct and surrounding

circumstances and events in deciding the issue of intent. McGee v. State, 923 S.W.2d 605, 608

(Tex. App.—Houston [1st Dist.] 1995, no pet.).

       1.      Ownership

       Ownership of a burglarized premises may be proven in one of three ways: (1) title; (2)

possession, whether lawful or not; or (3) a greater right to possession than the defendant. TEX.

PENAL CODE ANN. § 1.07(a)(35)(A); Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App.

1988). Thus, under the Penal Code, any person who has a greater right to the actual care, custody,

control, or management of the property than the defendant can be alleged as the “owner.”

Alexander, 753 S.W.2d at 392; accord Ramirez v. State, 429 S.W.3d 686, 688 (Tex. App.—San

Antonio 2014, no pet.).

       The testimony of an owner that she did not give permission to enter the habitation is

sufficient to establish the absence of effective consent. See Rangel v. State, 179 S.W.3d 64, 69

(Tex. App.—San Antonio 2005, pet. ref’d); Ellett v. State, 607 S.W.2d 545, 550 (Tex. Crim. App.

1980). Riley testified that Patterson was living with her permission at the apartment. Additionally,

both Riley and Patterson testified that Lee did not have permission to enter the apartment. The




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evidence supports that Patterson had a greater right to possession of the apartment than Lee. See

Ramirez, 429 S.W.3d at 688.

       2.      Without Effective Consent of the Owner

       The State points to the testimony that Lee came through an open or unlocked door as a

potential evidentiary issue. Forced entry is not, however, an element of burglary; rather, burglary

requires entry to be made without the effective consent of the owner. See TEX. PENAL CODE ANN.

§ 30.02(a) (West 2011); Ellett, 607 S.W.2d at 549.

       Although the door may have been open, there was no evidence that either Riley or Patterson

gave Lee consent to enter the apartment. See Evans v. State, 677 S.W.2d 814, 818 (Tex. App.—

Fort Worth 1984, no pet.) (“A person can make an unlawful entry by walking through an open

door when the entry is without the owner’s consent.”); Clark v. State, 667 S.W.2d 906, 908 (Tex.

App.—Dallas 1984, pet. ref’d) (“[A]n entry through an open door can constitute a burglary . . . if

the building is not open to the public.”). Importantly, lack of consent to entry in burglary

prosecutions may be shown by circumstantial evidence. Hathorn v. State, 848 S.W.2d 101, 107

(Tex. Crim. App. 1992).

       Because Lee did not have permission to enter the apartment, regardless of whether the door

was open or closed, we conclude the evidence supports the jury’s determination that the entry was

without the owner’s effective consent.

       3.      Commit aggravated assault

       An assault occurs when a person “intentionally or knowingly threatens another with

imminent bodily injury” or “intentionally or knowingly causes physical contact with another when

the person knows or should reasonably believe that the other will regard the contact as offensive.”

TEX. PENAL CODE ANN. § 22.01(a)(2),(3) (West 2011).



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       Riley testified that Lee threatened her with a firearm. See Harris v. State, 164 S.W.3d 775,

785 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (concluding that the complainant’s

testimony about being threatened, punched, choked, and pushed supports a finding of threat of

harm under Penal Code section 22.01(a) for a conviction of burglary of a habitation). The evidence

further supports that Lee shot Patterson in the hand, face, and torso. Id.; see also Odom v. State,

852 S.W.2d 685, 686–87 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (providing that a

complainant’s testimony and description of the knife was sufficient to support the jury’s finding

that the defendant had intent to commit assault even though the knife was never found, and the

complainant was not injured by the knife).

       Based on the testimony presented at trial, the evidence supports the jury’s determination

that Lee committed or intended to commit an aggravated assault against Patterson after entering

the apartment.

D.     Analysis

       It was the jury’s responsibility “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). It is well settled that the jury is the sole judge of the

weight and credibility of witness testimony, and we must defer to the fact-finder’s assessment of

the credibility of the witnesses “and the weight [to] be given to their testimony,” and allow for

reasonable inferences from the evidence presented. Brooks, 323 S.W.3d at 899–900; Williams,

235 S.W.3d at 750. Consequently, the jury was entitled to believe Riley’s and Patterson’s

testimony as to what they saw at the apartment and to disbelieve the testimony of any other witness.

       Viewing the evidence in the light most favorable to the verdict, we conclude the evidence

is legally sufficient to establish that Lee intentionally or knowingly entered the apartment without



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Patterson’s effective consent and with the intent to commit aggravated assault. Accordingly, we

overrule this issue.

                                         CONCLUSION

       Having overruled each of Lee’s issues on appeal, we affirm the trial court’s judgment.


                                                Patricia O. Alvarez, Justice

PUBLISH




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