                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-14-00016-CR

STELLA ARELLANO FIGUEROA,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                             From the 85th District Court
                                  Brazos County, Texas
                            Trial Court No. 11--3802-CRF-85


                             MEMORANDUM OPINION

          After a bench trial, the trial court convicted Stella Figueroa of the offense of

burglary of a habitation and assessed her punishment at five years confinement. We

affirm.

                                  Sufficiency of Evidence

          In her sole issue on appeal, Figueroa argues that the evidence is insufficient to

support her conviction. The Court of Criminal Appeals has expressed our standard of

review of a sufficiency issue as follows:
               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to 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. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S.Ct. 2712, 183

L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the 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). Finally, it is

well established that the factfinder is entitled to judge the credibility of 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).



Figueroa v. State                                                                           Page 2
        Stella Figueroa and Manuel Hernandez are the parents of N.F. and E.F. Stella

and Manual began having marital problems, and Manuel took the children to stay with

his mother, Elvira Hernandez. The children had been with Elvira a few days when

Stella went to Elvira’s home to get the children. Elvira testified at trial that Stella was

banging on the door and yelling. The children became upset and started crying. Stella

told Elvira that she had come for the children and that she was going to take them far

away where Elvira and Manuel would never see them again. Elvira stayed inside of the

house with the children, and the police arrived.

        The police officer talked to N.F. and N.F. said that she did not want to go with

Stella. The police officer told Elvira to call Manuel to come to the residence so that he

and Stella could discuss the issues. Manuel arrived and Stella began screaming at him.

Both Manuel and Stella left the residence, and the children remained there with Elvira.

Elvira testified that Stella returned later that night around 8:00 p.m. and told Manuel

that she wanted her children. Manuel told her she was not taking them until they

talked, and Stella left.

        Elvira testified that after Stella left, she got the children ready for bed, and then

she was getting herself ready for bed. Elvira heard the children crying, and she was

going to the bedroom to check on them. When she passed through the kitchen, Stella’s

cousin, Mariesol Saldana, was in the kitchen with a stun gun.             Stella was in the

children’s bedroom trying to take the children. Elvira told Stella to let the children go,

and Stella yelled to Mariesol “kill her.” Mariesol told Elvira that she was going to kill

her. Elvira stated that she tried to protect herself with a chair, but Mariesol shot her

Figueroa v. State                                                                      Page 3
with the stun gun, and she fell to the floor. Stella tried to leave the house with the

children, but Manuel and Elvira took the children from her.

        Maria Hernandez, Elvira’s daughter, testified that she lived in the home with

Elvira, her father, her son, N.F., and E.F. On the night of the offense, Maria was in the

bedroom when she heard Elvira screaming. Maria came out of her room and saw Elvira

fighting with Stella and Mariesol. Maria heard Stella yelling at Mariesol, “Kill her. Kill

the b –ch.” Maria called 9-1-1. Maria said that Elvira told her she had been shot with

the stun gun and showed her a red mark on her body. Stella left when she heard the

police, and an ambulance came to the residence for Elvira.

        Stella argues that the evidence is insufficient to show that Stella entered Elvira’s

house unlawfully. A person commits the offense of burglary of a habitation if, without

the effective consent of the owner, the person enters a habitation with intent to commit

a felony, theft, or an assault. TEX. PENAL CODE ANN. § 30.02 (a) (West 2011). Stella

concedes that the evidence is sufficient to show that Elvira was assaulted in her home;

however, she contends that the evidence is insufficient to show that she did not have

consent to enter the home. Stella claims that she had an open invitation to be in the

home pursuant to her relationship with the Hernandez family.

        Although Stella had been a frequent guest in the Hernandez home and was

welcomed on previous occasions, there is no evidence that she had an open invitation to

enter the home. Earlier that day, Stella was banging on the door of the house seeking to

enter the house and take the children, and Elvira did not invite her into the home. The

police were called to the residence. Elvira and Maria both testified that Stella did not

Figueroa v. State                                                                     Page 4
have permission to be in the home that night. We find that the evidence is sufficient to

support the conviction. We overrule the sole issue on appeal.



                                        AL SCOGGINS
                                        Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 4, 2014
Do not publish
[CR 25]




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