                                   MEMORANDUM OPINION
                                           No. 04-10-00261-CR

                                                Charles DAVIS,
                                                  Appellant

                                                      v.

                                          The STATE of Texas,
                                                Appellee

                        From the 437th Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2008CR5393
                                  Honorable Pat Priest, Judge Presiding 1

Opinion by:         Steven C. Hilbig, Justice

Sitting:            Catherine Stone, Chief Justice
                    Phylis J. Speedlin, Justice
                    Steven C. Hilbig, Justice

Delivered and Filed: February 16, 2011

AFFIRMED

           Charles Davis was convicted of burglary of a habitation and sentenced as a habitual

offender to twenty-five years in prison. He appeals the judgment, arguing the evidence is legally

and factually insufficient to support the jury’s verdict. We affirm the judgment.

                                                BACKGROUND

           Davis was accused of burglarizing a home owned by Helen Orr, but the indictment

named Katherine Park, Orr’s daughter, as the owner of the property. Park testified that her
1
    Sitting by assignment
                                                                                    04-10-00261-CR


mother was 102 years old at the time of trial and suffered from dementia. As a result, Park

controlled her mother’s affairs, including care of the home. Park testified that on August 29,

2007, she and her mother went shopping. Park gave her mother fifteen dollars to spend, and

placed the money in her mother’s purse. After shopping, Park drove her mother home and

watched her enter the house. Park testified her mother still had all the money. Park also testified

about her mother’s habits and routines, and told the jury that Orr always hung her purse from a

chair in the family room.

       Park told the jury her mother’s house had been burglarized in the past. She had therefore

asked Orr’s neighbors, the Garza family, to watch the property for any unusual activity. Park

testified that after driving away from her mother’s house on August 29, 2007, she received a

telephone call from one of the Garzas, telling her that her mother had been robbed. Park

returned to the house and met with the police. She went inside and noticed her mother’s purse

was sitting on the kitchen table. Park told the jury her mother never left her purse on the table.

Park looked inside the purse and discovered the fifteen dollars was missing. According to Park,

Orr did not have transportation or sufficient time after Park left the house to have spent the

money. Park testified she did not know the defendant Charles Davis and had never given him

permission to enter the house.

       Leonard Garza testified that on August 29, 2007, he was visiting his brother Michael,

who lived by Orr. As Leonard got out of his car, he saw Davis riding a bicycle down the street.

A few seconds later, when Leonard turned to walk toward his brother’s house, he noticed Davis

was no longer in view. Leonard looked into Orr’s back yard and saw the bicycle there. He told

his brother what he had seen and the brothers went to Orr’s back yard. Leonard testified he

could see Davis inside the house in the kitchen area, but he did not see Orr. When Leonard went



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into the house later with the police, Orr’s purse was found open on a countertop in the kitchen

near where Davis had been. Leonard told the jury Davis appeared nervous when he saw the

brothers. Davis came out the back door and told the brothers that he was inside the house to use

the restroom. The brothers permitted Davis to leave, but Leonard decided to follow him in his

car. Leonard testified Davis got on the bicycle and rode to a pawnshop. Davis entered the

pawnshop, came out, and then rode to a convenience store. Davis left the store with a beer in his

hand. Davis got on the bicycle again and rode down the street, where he was stopped by police.

       Michael Garza testified he lived across the street from Orr. He was aware that Orr

suffered from dementia and that Park made all her decisions for her. Michael testified that on

August 29, 2007, his brother Leonard came to his house and told him someone was in Orr’s back

yard. They went to Orr’s house and saw a bicycle in the yard. Michael testified there were

sliding glass doors in the back of the house and he saw someone inside near the kitchen sink. He

did not see Orr. The person then ran out the back door into the sunroom, which was attached to

the rear of the house. The brothers confronted the person when he came outside. Michael

testified the person said his name was Charles and that he was using the restroom. When

Michael told Davis there was a restroom at a convenience store down the street, the person said

he worked for Orr. Michael testified he knew Davis did not work for Orr. Both brothers

identified Davis as the person inside Orr’s house. After Davis left on his bicycle with Leonard

following him, Michael called the police. Michael was also talking on a cell phone to Leonard,

and Michael relayed Davis’s movements to the police.

       San Antonio Police officer Donnie Lee Milewski testified he was working on a burglary

task force when he received a dispatch concerning a burglary. He was directed to a location

where he saw an individual riding a bicycle and carrying a can of beer. A car was following the



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rider, later identified as Davis, and the driver was directing the officer’s attention to the bicycle

rider. Officer Milewski stopped Davis and arrested him. Officer Milewski testified Davis was

carrying a box cutter, a screwdriver and a pair of gloves, and told the jury these were common

tools used by burglars. Davis also had twelve or thirteen dollars on him when he was arrested,

and Officer Milewski testified the can of beer Davis had would have cost “a couple of dollars.”

Davis stipulated a fingerprint belonging to him was found on a coffee cup in the kitchen of Orr’s

house.

         The jury found Davis guilty of burglary and the trial court imposed a sentence of twenty-

five years. Davis appeals, contending the evidence was legally and factually insufficient to

prove he entered the habitation without the effective consent of the owner.

                                        APPLICABLE LAW

         After appellant’s brief was filed, the Court of Criminal Appeals issued its opinion in

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Although only four judges joined in

the plurality opinion, a majority of the judges agreed it is no longer appropriate to conduct a

separate review for factual sufficiency in criminal appeals. Brooks, 323 S.W.3d at 912; id. at

926 (J. Cochran concurring). Accordingly, we will review the evidence to determine whether it

is legally sufficient under the Jackson v. Virginia standard. Brooks, 323 S.W.3d at 912. Under

that standard, we review the evidence for legal sufficiency by looking at 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 offense beyond a reasonable doubt. Prible v. State, 175

S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005). We resolve any

inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000). “Circumstantial evidence is as probative as direct evidence in establishing the



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guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The standard of review is the same for cases

relying on either direct or circumstantial evidence. Id. “Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of the incriminating

circumstances is sufficient to support the conviction.” Id.

       The essential elements of the offense of burglary are: 1) a person; 2) intentionally or

knowingly; 3) enters a habitation; 4) without the effective consent of owner and 5) either enters

with intent to commit theft or enters and commits or attempts to commit a theft. See TEX. PENAL

CODE ANN. § 30.02 (a)(1),(3) (West 2003); Matthews v. State, 839 S.W.2d 110, 111 (Tex.

App.—Corpus Christi 1992, no pet.)(stating essential elements when entry was with intent to

commit theft); Villanueva v. State, 711 S.W.2d 739, 740 (Tex. App.—San Antonio 1986)(stating

essential elements when entry occurred and actor attempted to commit or committed theft), pet.

ref’d, 725 S.W.2d 244 (Tex. Crim. App. 1987).

                                           DISCUSSION

       Davis argues the evidence is legally insufficient to prove he entered the habitation

without the effective consent of the owner. The indictment and jury charge alleged Park was the

owner of the property. Davis concedes Park is an “owner,” as the word is used in the Penal

Code, and that Park did not consent to Davis’s entry. See TEX. PENAL CODE ANN. § 1.07(a)(35)

(West Supp. 2010) (“owner” includes person who has a greater right to possession of the

property than the actor). However, he argues that Orr was also an owner, that the evidence

implies Orr gave him permission to enter, and the State did not rebut the implication. We

disagree. There is no direct evidence that Orr gave Davis permission to enter the house. The

Garzas testified Davis told them he was in the house to use the restroom and that he worked for



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Orr. However, neither witness testified Davis said Orr gave him permission to enter the house.

Further, both Michael Garza and Park testified that Davis did not work for Orr. The jury was

free to conclude there was no reason for Davis to lie if Orr had given him permission to enter the

home. Finally, even if Orr had given Davis permission to enter the home, a rational jury could

conclude such permission was not for the purpose of committing theft while in the residence.

See TEX. PENAL CODE ANN. § 1.07 (a)(19) (West Supp. 2010) (consent is not effective if induced

by fraud).   There is sufficient evidence to support the jury’s implicit rejection of Davis’s

contention that Orr gave him effective consent to enter her home.

       Park testified she did not give Davis permission to enter her mother’s house. Orr’s purse

was found open, not in its usual location, and with fifteen dollars missing from it. Davis was

seen in the house near where the open purse was later found; he gave what the jury could infer

was a false excuse, and was found in possession of thirteen dollars soon after leaving Orr’s

property. A rational jury could have found all the essential elements of the offense beyond a

reasonable doubt. We therefore affirm the trial court’s judgment.

                                                Steven C. Hilbig, Justice


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