                                      NO. 12-19-00002-CR

                            IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

 DARRELL LYNELL HORACE, SR.,                             §       APPEAL FROM THE 349TH
 APPELLANT

 V.                                                      §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                                §       HOUSTON COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Darrell Lynell Horace, Sr. appeals his conviction for attempted burglary of a habitation. In
one issue, Appellant argues that the evidence is insufficient to support the trial court’s judgment.
We affirm.

                                               BACKGROUND
       Appellant was charged by indictment with attempted burglary of a habitation as follows:


                With the specific intent to commit the offense of Burglary of a Habitation . . . owned by
       Alexandria Hamilton, do an act, namely: strike a door and/or attempt to open a window of said
       habitation, which amounted to more than mere preparation that tended but failed to effect the
       commission of the offense intended.


The indictment further alleged that Appellant previously was convicted of six felonies. Appellant
pleaded “not guilty,” and the matter proceeded to a jury trial.
       The jury found Appellant “guilty” as charged. Following a trial on punishment, the jury
assessed Appellant’s punishment at imprisonment for fifteen years. The trial court sentenced
Appellant accordingly, and this appeal followed.
                                        EVIDENTIARY SUFFICIENCY
       In his sole issue, Appellant argues that the evidence is insufficient to support the trial
court’s judgment. As part of this issue, Appellant contends that we should ignore testimony
offered by an accomplice witness because such testimony was uncorroborated.
Standard of Review
       The Jackson v. Virginia 1 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum
required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction.
See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo v. State, 6 S.W.3d 1, 6
(Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most
favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d
at 186. A jury is free to believe all or any part of a witness’s testimony or disbelieve all or any
part of that testimony. See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.–Houston [1st Dist.]
2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). A successful legal sufficiency challenge
will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31,
41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
       Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State, 521 S.W.3d
822, 827 (Tex. App.–Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State, 343 S.W.3d 152,
155 (Tex. Crim. App. 2011)). 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. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries
are permitted to draw multiple reasonable inferences as long as each inference is supported by the
evidence presented at trial. Id. at 15. Juries are not permitted to come to conclusions based on


       1
           443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).


                                                        2
mere speculation or factually unsupported inferences or presumptions. Id. An inference is a
conclusion reached by considering other facts and deducing a logical consequence from them,
while speculation is mere theorizing or guessing about the possible meaning of facts and evidence
presented. Id. at 16.
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include 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 is tried.” Id.
Accomplice Witness Testimony
       “A conviction cannot be had upon the testimony of an accomplice unless corroborated by
other evidence tending to connect the defendant with the offense committed; and the corroboration
is not sufficient if it merely shows the commission of the offense.” TEX. CODE CRIM. PROC. ANN.
art 38.14 (West 2005).
       Such evidence “is sufficient corroboration if it shows that rational jurors could have found
that it sufficiently tended to connect the accused to the offense.” Smith v. State, 332 S.W.3d 425,
442 (Tex. Crim. App. 2011) (citing Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App.
2009)). According to the Texas Court of Criminal Appeals,

       No precise rule can be formulated as to the amount of evidence required to corroborate. The
       nonaccomplice evidence does not need to be in itself sufficient to establish guilt beyond a reasonable
       doubt. Nor must the nonaccomplice evidence directly link the accused to the commission of the
       offense. While the accused’s mere presence in the company of the accomplice before, during, and
       after the commission of the offense is insufficient by itself to corroborate accomplice testimony,
       evidence of such presence, coupled with other suspicious circumstances, may tend to connect the
       accused to the offense. Even apparently insignificant incriminating circumstances may sometimes
       afford satisfactory evidence of corroboration.



Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996) (citations omitted). In determining
whether the nonaccomplice evidence tends to connect the defendant to the commission of the
offense, “we view the evidence in the light most favorable to the jury’s verdict.” Brown v. State,
270 S.W.3d 564, 567 (Tex. Crim. App. 2008).




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Burglary of a Habitation
         To prove the Appellant committed burglary of a habitation, the State was required to
demonstrate that he (1) with the specific intent to commit burglary of a habitation, (2) performed
an act, namely striking a door and/or attempting to open a window of said habitation, (3) which
amounted to more than mere preparation that tended but failed to effect the commission of the
intended offense. See TEX. PENAL CODE ANN. §§ 15.01(a), 30.02(a)(1) (West 2019).
         The Evidence
         In the instant case, Alexandria Hamilton testified that she lived in a house in Houston
County, Texas with her husband. Hamilton further testified that on February 20, 2018, her husband
came home from work to eat lunch at their house. She stated that after he left the house to return
to work, a group of men drove a car into the driveway and parked near the house, at which point,
three men she did not recognize exited the vehicle 2 and approached the front porch. She further
stated that one of the men knocked on the front door. Hamilton testified that she did not answer
the door because she did not recognize the men, and the men eventually got in the car and drove
away. Hamilton testified that, later that day, the men returned in the same car and parked near her
front porch. She stated that one of the men again knocked on her door, but much more aggressively
than before. She also stated that one of the other men was “banging” on the back door of her house
as well. Hamilton testified that one man approached her bedroom window, while another
approached a living room window to the left of the front door. She described how it was apparent
that the living room window was being pushed hard enough that the force could be felt in the chairs
next to it. She also described how one of the men attempted to pull up the bedroom window.
Hamilton stated that after about five minutes, the knocking was getting “so crazy” that she yelled,
“Get the hell off my door[.] I’m calling the police.” At that point, according to Hamilton, the men
returned to the car and she saw Appellant in addition to the three others. She testified that
Appellant was not among the first two individuals to return to the car, which caused her to conclude
that he was coming from the side of her house. Hamilton testified that they left without saying
anything.
         Issachar Marshall testified that he, Appellant, Darrell Horace, Jr., and Jacoriance Wooten
were driving to Grapeland, Texas to look at a car. Marshall further testified that the car’s owner


         2
         The record reflects that Hamilton later described the vehicle to a 9-1-1 dispatch operator as a silver car with
no hubcaps.


                                                           4
was not there when they arrived in Grapeland, and Appellant suggested that they look at a go-cart
they had seen at a house during the drive to Grapeland. Marshall stated that when they arrived at
the house, Appellant and Horace, Jr. exited the vehicle and Appellant approached the front door
while Horace, Jr. walked to the rear of the house. According to Marshall, after Appellant knocked
on the door for several minutes, he and Horace, Jr. returned to the car and the group drove back to
Grapeland to see if the car was available for them to inspect. Marshall testified that, once again,
the car’s owner was not there when they arrived, and they returned to the house where the go-cart
was located. Marshall further testified that when they arrived, Appellant and Horace, Jr. again
exited the vehicle and approached the house––Appellant went to the front door and Horace, Jr.
walked to the rear of the house. Marshall stated that Horace, Jr. returned to the vehicle a short
time later and said something to Wooten, who, in response, exited the vehicle and accompanied
Horace, Jr. to the rear of the house. Marshall described how Appellant was knocking on the front
door in an unusual manner by facing away from it and kicking it repeatedly with the heel of his
shoe. Marshall also stated that after about eight minutes, the three men hastily retreated to the car
from their various positions around the house’s exterior. Marshall testified that Appellant got into
the back seat of the car with him and said, “Someone is there” and someone was trying to get in
the back window with a machete. Based on what he observed, Marshall opined that Appellant was
attempting to determine if anyone was in the house while Horace, Jr. and Wooten attempted to get
into the house using a machete. Marshall stated that he believed the other three men intended to
“rob the house.”
        Discussion
        We first consider whether Marshall’s testimony sufficiently was corroborated. 3 As set forth
above, Hamilton testified that a group of men drove a car into the driveway and parked near the
house, at which point, three men she did not recognize excited the vehicle and approached the front
porch. She further testified that one of the men knocked on the front door and, when she did not
answer the door, the men eventually got in the car and drove away. Hamilton stated that a short
period of time later, the men returned in the same car and parked near her front porch. She further

         3
           An accomplice is someone who participates with the defendant before, during, or after the commission of
a crime and acts with the required culpable mental state. See Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App.
2008) (citing Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004)). It is undisputed that Marshall pleaded
“guilty” to attempted burglary, arising from the same circumstances underlying the instant case. Consequently, he is
an accomplice as a matter of law. See Paredes, 129 S.W.3d at 536 (“An accomplice as a matter of law is one who is
susceptible to prosecution for the offense with which the accused is charged or a lesser included offense”).


                                                         5
stated that one of the men again knocked on her door, but much more aggressively than before,
and one of the other men was “banging” on the back door of her house as well. Hamilton testified
that one man approached her bedroom window, while another approached a living room window,
and she described the living room window was being pushed hard enough that the force could be
felt in the chairs next to it. She also described how one of the men attempted to pull up the bedroom
window. Hamilton stated that after about five minutes, she threatened to call the police and the
men returned to the car. Hamilton identified Appellant as being among the men she saw returning
to the car.
        Furthermore, Henderson County Sheriff’s Deputy William Gardner testified that he
assisted a fellow officer who detained a group of men in a car matching the description of the
vehicle seen at Hamilton’s home. He identified Appellant as one of the individuals in the car that
day.
        Hamilton’s and Gardner’s testimonies establish Appellant’s presence at Hamilton’s home
and, later, his presence in the vehicle Hamilton described having seen at her home. Hamilton’s
description of someone’s aggressively knocking at her front door closely corresponds with
Marshall’s description of Appellant’s repeatedly kicking the front door with the heel of his shoe.
Further, Hamilton’s testimony of men approaching her house from the front and the rear closely
mirrors Marshall’s testimony that Horace, Jr. and Wooten were attempting to gain entry to the rear
of the house using a machete while Appellant kicked the front door with his shoe heel. Having
considered the aforementioned evidence in a light most favorable to the jury’s verdict, we conclude
that the jury rationally could have found that such evidence sufficiently tended to connect
Appellant to the offense. See Smith, 332 S.W.3d at 442.
        As a result, we have considered Hamilton’s testimony in conjunction with Marshall’s
testimony as set forth above in a light most favorable to the verdict. Having done so, we further
conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant
intended to burglarize Hamilton’s house, struck at her door with the heel of his shoe, and attempted
to open a window to her home. See TEX. PENAL CODE ANN. §§ 15.01(a), 30.02(a)(1). Further,
based on the entirety of the circumstances, the jury rationally could have found beyond a
reasonable doubt that Appellant’s actions amounted to more than mere preparation that tended but
failed to effect the commission of the burglary. See id. Therefore, we hold that the evidence is




                                                 6
legally sufficient to support the trial court’s judgment. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; see also Johnson, 871 S.W.2d at 186. 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 September 4, 2019.
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

                                         SEPTEMBER 4, 2019


                                         NO. 12-19-00002-CR


                              DARRELL LYNELL HORACE, SR.,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 18CR-091)

                       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, 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.
