                                     NO. 12-16-00109-CR

                            IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

KENDRICK NELSON-PHILLIPS,                         §      APPEAL FROM THE 7TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
          Kendrick Nelson-Phillips appeals his conviction for burglary of a habitation. In his sole
issue, Appellant argues that the trial court erred in denying his motion for directed verdict. We
affirm.


                                           BACKGROUND
          At approximately 2:00 a.m. on November 23, 2015, Kedrick Darks was at the home of
his friend Sean Bennett watching a movie. Bennett was asleep in another room. Darks heard a
loud noise that he initially believed emanated from the home media system, but was actually
several individuals forcefully entering the home through its rear door. Two of the assailants
pointed firearms at Darks, threatened him, and demanded property. Bennett awoke and attacked
the assailants, who fled the home.
          Bennett called 9-1-1 and described what had occurred. Tyler Police Department officers
quickly observed a vehicle, which matched the description provided by Bennett, in the area and
initiated a traffic stop. The occupants, including Appellant, wore clothes that matched the
description provided by the victims. Moreover, a subsequent search of the vehicle revealed the
presence of the same types of firearms as those described by the victims.
         Appellant was arrested and indicted for burglary of a habitation. Appellant pleaded “not
guilty” and the matter proceeded to a jury trial. Among other defenses, Appellant challenged
Darks’ status as an “owner” of the habitation as alleged in the indictment. The jury found
Appellant guilty of the charged offense.      After a punishment hearing, the jury sentenced
Appellant to fifty years of imprisonment. This appeal followed.


                                       DIRECTED VERDICT
         In his sole issue, Appellant argues that the trial court erred in denying his motion for
directed verdict because the State “alleged a complainant in the indictment who did not own the
residence.”
Standard of Review
         A challenge to a trial court’s ruling on a motion for directed verdict is a challenge to
the sufficiency of the evidence to support a conviction, and is reviewed under the same standard.
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). When determining if evidence
is sufficient to sustain a conviction, the court must apply the Jackson v. Virginia standard.
See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010). This standard requires
the court to determine whether, considering all the evidence in the light most favorable to the
verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks, 323 S.W.3d
at 899. In order to consider the evidence in the light most favorable to the verdict, we must defer
to the jury’s credibility and weight determinations, because the jury is the sole judge of the
witnesses’ credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at
899; see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.             This standard recognizes “the
responsibility of the trier of fact fairly 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; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011).
         The fact finder is entitled to judge the credibility of the witnesses, and can choose to
believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012). When conflicting evidence is presented, we must resolve those conflicts in



                                                2
favor of the verdict and defer to the fact finder’s resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793. We may not substitute our own judgment for that of the fact finder. See id., 443 U.S. at
319, 99 S. Ct. at 2789; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014); King v.
State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
       We also measure the sufficiency of the evidence by the elements of the offense as defined
in a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). A hypothetically correct jury charge is one that “accurately sets out the law,
is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Id.
Applicable Law
       The trial court must “distinctly” instruct the jury on the law applicable to every issue
raised by the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “Because the
charge is the instrument by which the jury convicts, [it] must contain an accurate statement of the
law and must set out all the essential elements of the offense.” Vasquez v. State, 389 S.W.3d
361, 366 (Tex. Crim. App. 2012). Thus, the charge of the court must communicate
each statutory definition that affects the meaning of an element of the offense. Villarreal v.
State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009).
       In relevant part, a person commits burglary if, without the effective consent of the owner,
he enters a habitation and commits or attempts to commit a felony, theft, or assault. TEX. PENAL
CODE ANN. § 30.02(a) (3) (West 2011). The Code of Criminal Procedure requires that the State
allege the name of the “owner” of property in its charging instrument. TEX. CODE CRIM. PROC.
ANN. arts. 21.08, 21.09 (West 2009); see Byrd v. State, 336 S.W.3d 242, 251 & n. 48 (Tex.
Crim. App. 2011). The State is required to prove beyond a reasonable doubt that the person
alleged in the indictment as the owner is the same person as shown by the evidence to be the
owner. Byrd, 336 S.W.3d at 252.
       The    penal   code    defines   an   “owner”    as   a   person    who    has “title to   the
property, possession of the property, whether lawful or not, or a greater right to possession of the
property than the actor.” TEX. PENAL CODE ANN. § 1.07(a)(35)(A) (West Supp. 2016); Morgan
v. State, 501 S.W.3d 84, 91 (Tex. Crim. App. 2016) (stating that Texas Penal Code definition of




                                                  3
“owner” is the relevant definition for burglary prosecution). “Possession” is defined as “actual
care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39).
        “To eliminate the distinctions between general and special owners, and to give ownership
status to anyone with a rational connection to the property, the legislature has given ‘owner’ an
expansive     meaning       that    anyone     having       a   possessory     interest    in    the    property
through title, possession, whether lawful or not, or a greater right to possession of the property
than the defendant, is an owner of the property.” Garza v. State, 344 S.W.3d 409, 413 (Tex.
Crim. App. 2011). “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 v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988). A person’s “right
to possession” must be measured at the time of the accused’s alleged criminal act. See Freeman
v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986).
Discussion
        Appellant argues that the evidence is insufficient to establish that Darks was an “owner”
of the habitation as alleged in the indictment. The indictment alleged that Appellant “did then
and there intentionally and knowingly enter a habitation, without the effective consent of
Kendrick Darks, the owner thereof, and attempted to commit or committed the felony offense of
aggravated robbery and aggravated assault.” The alleged victim’s name is Kedrick Darks, not
“Kendrick Darks” as alleged in the indictment.1 The jury charge contained the proper definitions
of “owner” and “possession.”
        Darks testified that Bennett was his best friend and that he would often spend the night at
Bennett’s home. Bennett testified that he lived at the home where the invasion took place, Darks
was his friend who would occasionally spend the night, and that he was an invited guest on the
night of the invasion.
        A homeowner’s guest, such as Darks, has a greater right to the actual care, custody,
control, or management of the habitation than an uninvited assailant such as Appellant. See
Ramirez v. State, 429 S.W.3d 686, 689-90 (Tex. App.—San Antonio 2014, pet. ref’d).
Consequently, the jury could have reasonably concluded that Darks was an “owner” of the




        1
           Appellant did not challenge the indictment. Furthermore, Appellant did not object to the jury charge’s
reference to the victim’s identity as Kedrick Darks rather than Kendrick Darks or raise that issue in this appeal.


                                                        4
habitation as alleged in the indictment. See Morgan, 501 S.W.3d at 91-92; Ramirez, 429 S.W.3d
at 689-90.
         Viewing all the evidence in the light most favorable to the jury’s verdict, we conclude
that the jury was rationally justified in finding Appellant guilty of burglary of a habitation,
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks,
323 S.W.3d at 899; TEX. PENAL CODE ANN. § 30.02(a) (3). Because the trial court did not err by
denying Appellant’s motion for a directed verdict, Appellant’s sole issue is overruled.


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

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice




Opinion delivered October 25, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 25, 2017


                                         NO. 12-16-00109-CR


                                KENDRICK NELSON-PHILLIPS,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1669-15)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, for which execution may issue, and that this
decision be certified to the court below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
