                                        . 12-09-00226-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

CHRISTOPHER ROBERT GEAR,                              §              APPEAL FROM THE 217TH
APPELLANT

V.                                                    §              JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                             §               ANGELINA COUNTY, TEXAS

                                      MEMORANDUM OPINION
        Christopher Robert Gear appeals his conviction for attempted burglary of a habitation. In
two issues, Appellant argues that the evidence is legally and factually insufficient to support the
verdict. We reverse and render.


                                               BACKGROUND
        Mona Brown was resting at her home after lunch when she heard what sounded like a door
rattling on her house. Her husband1 works at a nearby sawmill, and she thought he had returned
to get a tool, something he did fairly often. She dozed again and was again awakened by more
noises. This time it sounded to her like her husband was inside the house banging around trying
to get the grass trimmer out of the house. She knew, however, that the noises were not routine
when she heard three loud bangs, one after the other. This caused her to get up and go to
investigate.
        As she walked to where she expected to see her husband, Brown was surprised to find that
he was not there. She was also surprised when she did not to see his truck parked in its customary

        1
           For ease of narration, we refer to Brown by her married name. She and her husband were not married at
the time of the incident but did marry prior to trial.

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place in front of the house. She did notice, however, that the back room—a room that is
ordinarily quite dark because the windows were covered with dark curtains—was very brightly
lighted. She went into the room and saw that a window was broken out. She went over to the
window and came face to face, within six inches, with Appellant, who was outside of the house.
She thought he was trying to leap through the window into the house. She asked Appellant what
he was doing, and he said something like, ―I didn’t do it.‖ Appellant began walking away, and
Brown called the police.
       The police found Appellant walking along the highway some distance from Brown’s
house. They brought Brown to where they had detained Appellant, and she identified him as the
person she saw outside her window. Appellant told her that he had not been trying to break into
her house. The officer gave Appellant a trespass warning and released him.
       An Angelina County grand jury indicted Appellant for the felony offense of attempted
burglary of a habitation. Appellant waived a jury trial and pleaded ―not guilty‖ at a bench trial.
The trial court heard evidence and found Appellant guilty as charged. Following a sentencing
hearing, the trial court assessed punishment at imprisonment for five years. This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his first and second issues, Appellant argues that the evidence was insufficient to support
the verdict. Specifically, he argues that the evidence was insufficient to prove that he broke the
window in Brown’s house with the intent to commit a burglary.
Applicable Law
       The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.
Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App.
2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not
legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Rollerson v. State, 227 S.W.3d 718, 724
(Tex. Crim. App. 2007).
       While legal sufficiency review is all that is required by the U.S. Constitution, the Texas
Court of Criminal Appeals has determined that the Texas Constitution requires further review of

                                                  2
the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129B30 (Tex. Crim.
App. 1996). Factual sufficiency review differs from legal sufficiency review only slightly. See
Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). In a factual sufficiency review,
we review the evidence without the light most favorable to the verdict and we are authorized,
―albeit to a very limited degree,‖ to disagree with the jury’s resolution of contested factual issues.
See id.; Watson v. State, 204 S.W.3d 404, 414, 417 (Tex. Crim. App. 2006). In a review of the
factual sufficiency of the evidence, we will conclude that the evidence is insufficient only if the
great weight and preponderance of the evidence contradicts the jury’s verdict or the verdict is
clearly wrong and manifestly unjust. See Rollerson, 227 S.W.3d at 724; Watson, 204 S.W.3d at
417.
       Under either standard, our role is that of appellate review, and the fact finder is the
principal judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29
S.W.3d 103, 111–12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or
none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
       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). A hypothetically correct jury charge ―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.
       The State was required to prove that Appellant, with the intent to commit the offense of
burglary of a habitation, did an act that amounted to more than mere preparation which tended but
failed to effect the commission of the intended offense. See TEX. PENAL CODE ANN. § 15.01(a)
(Vernon 2003). As relevant here, a person commits burglary if, without the effective consent of
the owner, he enters a habitation with intent to commit a felony, theft, or an assault. TEX. PENAL
CODE ANN. § 30.02(a)(1) (Vernon 2003). The indictment alleged that Appellant broke out a
window in Brown’s house with the specific intent to commit the offense of burglary of a
habitation.


Analysis
       Appellant testified that he broke out the window and made the noises that Brown heard.

                                                  3
According to Appellant’s version of events, he had quit a job earlier that day with a roofing
company. He said that he took a nap on a couch in the front yard of Brown’s house. After
sleeping for some time, he awoke and went around to the back of the house where he relieved
himself. He stated that he then became angry with himself for the predicament he was in–he had
only a dollar or two, had just quit his job, and had no transportation–and began to punch the side of
the house and an adjacent fence.
         He gave a slightly different version of events to an investigator from the district attorney’s
office, telling him that he accidentally broke the window because he leaned against the window
frame as he was relieving himself, causing the window to break. Neither of these explanations fit
the course of events that Brown described. The first rattling noise she heard was from a side door
that had been nailed shut. The escalated, louder noises were directed strikes aimed at the window.
It is reasonable to conclude that Appellant was attempting to gain entry to the house through his
persistent efforts at what looked like points of entry. Brown’s observation that it appeared
Appellant was attempting to enter the house through the window is also consistent with his
breaking the window for the purpose of gaining entry.
         To be guilty of an attempt, there must be evidence that the person acted with ―the specific
intent to commit‖ the underlying offense. See TEX. PENAL CODE ANN. § 15.01(a); Laster v. State,
275 S.W.3d 512, 521 (Tex. Crim. App. 2009). Burglary, the underlying offense here, requires
proof that the person entered a habitation with the intent to commit a felony, theft, or an assault.
TEX. PENAL CODE ANN. § 30.02(a)(1).2
         At trial, the State did not offer a theory as to what offense Appellant intended to commit
within the house. The State did point out that there was ―no explanation as to why he would want
to enter the residence for a lawful purpose‖ and that the trial court could conclude from his
implausible explanation that ―he is covering up what his true intent was.‖ On appeal, the State
points out that a defendant’s conduct and the surrounding circumstances may be found to imply
intent to commit burglary, but the State does not explain how the evidence in this case allows the
inference that Appellant intended to commit a felony, theft, or an assault within the house.

         2
            There was confusion at trial as to the State’s burden of proof. The court asked whether the State had to
prove the ―mens rea or the intent of [] what the underlying offense was . . . .‖ The State responded in the negative.
Appellant argued that the State did have to prove that he acted with the specific intent to commit burglary, which
included ―all the elements of burglary of a habitation.‖ On appeal, the State does not challenge Appellant’s assertion
that it was required to prove Appellant had the intent to commit a felony, theft, or an assault within the house.


                                                          4
         We begin by pointing out that the burglary statute does not condemn all entries that are not
for lawful reasons. All unlawful entries are condemned by the statute prohibiting criminal
trespass. See TEX. PENAL CODE ANN. § 30.05(a) (Vernon Supp. 2009). Burglary includes only a
subset of those entries, those made with the intent to commit a felony, theft, or an assault. TEX.
PENAL CODE ANN. § 30.02(a)(1). We agree with the State that it appears, and the trial court
believed, that Appellant was not being truthful as to what he was doing that day at the Browns’
house. But while the implausibility of his story suggests that it is not true, it does not lead to the
conclusion, even in a light most favorable to the verdict, that he intended to commit some felony,
to steal something, or to assault a person within the house.3
         As the State points out, courts have been quite deferential when allowing inferences as to a
person’s intent when trying to break into a building. In Richardson v. State, 973 S.W.2d 384, 387
(Tex. App.–Dallas 1998, no pet.), the court held that the finder of fact could infer intent to commit
an attempted burglary where a person saw two men pull up to a neighbor’s house and the
defendant was apprehended with a screwdriver that matched fresh pry marks on the door. In
Roane v. State, 959 S.W.2d 387, 388–89 (Tex. App.–Houston [14th Dist.] 1998, pet. ref’d), the
court held the evidence was legally sufficient to support an inference of intent to commit burglary
based on the fact that the appellant had been wearing latex gloves and had been chipping at the
window of a home that was later found to be lacking a screen and missing caulking about the
window. Id. at 388. In Roach v. State, 635 S.W.2d 169, 171 (Tex. App.–San Antonio 1982, no
pet.), 4 a plurality of the court found it sufficient to infer intent to commit a theft within the
structure when the defendant hid upon being alerted to the police presence, his knife was found at
the scene, which may have been used to force a door open, and the attempted entry occurred at
night.5 In Smith v. State, No. 01-01-00272-CR, 2002 Tex. App. LEXIS 4786, at *14–15 (Tex.


         3
           The burglary statute also covers those who commit a felony, theft, or an assault after breaking into a
structure as well as those who remain concealed within a building with the intent to commit a felony, theft, or assault.
See TEX. PENAL CODE ANN. § 30.02(a)(2), (a)(3). Appellant was not charged with violating those parts of the statute.
         4
            The court of criminal appeals decision in Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984),
is often cited for the proposition that intent to commit burglary can be inferred in a case where the defendant tried
several times to get into a mobile home before being encouraged to leave by an armed homeowner. While the court in
that case did hold that the evidence in that case was legally sufficient to prove each essential element of the offense, the
decision is tightly focused on the question of whether the defendant’s actions in that case went beyond mere
preparation, and not on the question of intent. Id. at 381–83.
         5
          As a tool of appellate review, courts have historically employed a presumption of intent to commit theft
when there is a nonconsensual nighttime entry. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)

                                                             5
App.–Houston [1st Dist.] July 3, 2002, pet. ref’d) (mem. op., not designated for publication), the
court held that intent could be inferred because the burglary occurred at night and because the
defendant had burglary tools, was out of breath, sweating, and appeared to be nervous. In
Bothwell v. State, No. 12-08-00047-CR, 2009 Tex. App. LEXIS 2163, at *11–12 (Tex.
App.–Tyler Mar. 31, 2009, pet. ref’d) (mem. op., not designated for publication), this court held
that a burglary inference was supported by evidence that the appellant appeared to be engaged in a
concerted effort to break into the house, he had an implement that appeared to have been used to
break a window, and he made two trips to the house.
        Finally, though not a burglary case, in Laster v. State, the court of criminal appeals held
that the evidence was sufficient to conclude that the defendant intended to kidnap, and therefore to
secrete away, a child because he ―grabbed and then pulled [her] toward him,‖ ―continued to pull
[her] after her brother came to her aid,‖ and did not release her until a ―driver honked the car’s
horn.‖ See Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009). Instrumental to the
court’s conclusion that the defendant intended to hold or secrete the child in a place where she was
unlikely to be found was evidence that the defendant did not simply ―grab at‖ the child, but ―pulled
her away.‖ Id. at 523. The court concluded that this evidence supported the jury’s verdict that
the defendant intended to secrete or hold the child. Id. The court reasoned that even when there
are other plausible inferences supported by the evidence, it is within the province of the factfinder
to choose which inference is most reasonable so long as the verdict itself is supported by a
reasonable inference. Id.
        In this case, there is no reasonable inference to support the conclusion that Appellant
intended to commit a felony, theft, or an assault within the house. Indeed, the State has not
identified, either at trial or on appeal, what evidence supports the conclusion that Appellant
intended to commit a felony, theft, or an assault within the house. It is reasonable to conclude that
Appellant pushed at the nailed–shut door and broke the window because he was trying to get into
the house. But among the various things he could have done inside, there is no evidence to
support a conclusion that he intended to commit a felony, theft, or an assault. He testified that he
thought the house was abandoned, and that he could not believe that anyone lived there. This
assertion allows the inference that he did not intend to commit a theft within the house or that he
did not think it was a dwelling, but the trial court was not required to believe his assertion.

(en banc)

                                                  6
         It is true, as the State points out, that Appellant fled the scene. But at that point, Appellant
had already committed a crime by breaking the window. His flight was not more consistent with
having committed a burglary than it was with committing criminal mischief, or with sheepishly
retreating after waking a woman in the middle of the day. Appellant had no burglary tools, the
events did not occur at night, he did not have a vehicle with which to spirit away stolen items, there
was no evidence of an organized or planned effort to steal from the home, he had no accomplices
ready to assist him, and there was no evidence that he was casing or otherwise scouting out the
home. In short, the kind of additional facts present in attempted burglary cases that allowed the
inference that it is a felony, theft, or an assault that the person intended to commit within the
building are not present in this case.6
         There is the matter of Appellant’s denials. He denied he was trying to break into the
house. Furthermore, he had previously been convicted of robbery, theft, and possession of hash
oil. But, as we have said, there is sufficient evidence to conclude that he was attempting to break
into the house. His denial of being the person who broke the window is consistent with his
intending to commit a felony, theft, or an assault within the house. But as with his flight, his
unconvincing story allows the conclusion that it is not true but not that he intended to commit a
felony, theft, or an assault within the house.
         This is an unusual case in which there is no evidence that allows any inference about what
Appellant intended to do within the house. By a process of elimination, a rational finder of fact
could conclude that Appellant’s intentions were not honorable. But we read Laster to mean that
while the factfinder’s prerogative to choose among plausible and rational readings of the evidence
is beyond our review, there must still be some evidence to prove the essential elements of the
offense and a verdict must be supported by a reasonable inference. In that case, the fact that the
defendant did not release the child until a horn was honked allowed the conclusion that he intended
to commit a kidnapping. Id. at 523. There is not such evidence in this case.
         In light of the standard of review, and the Laster decision, the evidence that allows the
finder of fact to rationally pick one inference when several are available may be very slight. But

         6
           Although the State did not present this fact as part of an argument, it is also true that Appellant testified that
he did not have very much money. We are reluctant to make arguments for parties; but we do not conclude, under the
facts of this case, that Appellant’s lack of money allows an inference that he intended to commit a theft. His
testimony about a lack of funds came in the context of a discussion about his general frustration with having walked
off his job and with being hot, sweaty, and tired. Without more, the fact that he did not have much money in his
pocket does not allow the inference that he intended to commit a theft inside the house.

                                                             7
the burglary statute requires a very specific kind of intent. Because of the lack of any evidence in
this case that leads to the conclusion that Appellant intended to commit a felony, theft, or an
assault inside the house, we hold that the evidence is legally insufficient to support the verdict.
We sustain Appellant’s first issue. Because we sustain his first issue, we do not reach the issue of
the factual sufficiency of the evidence.


                                                        DISPOSITION
         Having sustained Appellant’s first issue, we reverse Appellant’s conviction and render a
judgment of acquittal.


                                                                      BRIAN HOYLE
                                                                         Justice



Opinion delivered May 12, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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