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                                  MEMORANDUM OPINION


                                         No. 04-08-00278-CR

                                        Juan L. CABALLERO,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2006-CR-10255
                               Honorable Mary Román, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: April 8, 2009

AFFIRMED IN PART AND VACATED IN PART

           Juan Caballero was convicted of one count of burglary of a habitation with intent to commit

sexual assault and one count of burglary of a habitation with intent to commit theft. On appeal,

Caballero asserts there is legally and factually insufficient evidence to support his conviction for

burglary of a habitation with intent to commit sexual assault. Although we conclude the evidence

is legally and factually sufficient to support Caballero’s conviction for burglary of a habitation with
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intent to commit sexual assault, we must modify the judgment to vacate Caballero’s conviction for

burglary of a habitation with intent to commit theft because his two burglary convictions violate

Caballero’s right to be free of double jeopardy.

                                                  BACKGROUND

       The victim, Courtney Mann, lived in San Antonio, Texas with her two children.

Approximately nine months after moving into her home, Mann began to see Caballero walking past

her residence. Caballero initiated contact with Mann on April 6, 2006, while she was in her yard.

The record reflects that Mann was in her yard picking up a rake when she heard a man’s voice say,

“don’t work too hard.”1 Mann, who was startled by the man’s voice, screamed. When Mann turned

around to see who was behind her, she observed Caballero standing eight feet away. Cabellero told

Mann to have a nice day and walked away.

       The next day, on April 7, 2006, Mann noticed Caballero outside her home. Caballero, who

was staring at Mann’s residence and pacing back and forth, approached the home and peered into

Mann’s window. Caballero stared through the window at Mann for approximately 15 seconds before

he left Mann’s property.

       Mann fell asleep on the living room couch that night. Mann was awakened from her sleep,

however, by the sound of footsteps inside her home. Shortly thereafter, Mann saw Caballero in her

living room. Mann observed Caballero go into her kitchen and heard him lock the back door to the

house. When he returned to the living room, Caballero was carrying a knife and a brown bag

containing two bottles of champagne.




       1
           … At the time of the contact, Mann was wearing running shorts and an exercise top over a bathing suit.

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        Mann, who was unable to complete a call to 911, jumped up from where she was lying and

started to scream. Mann called for help and told Caballero that he did not belong inside her home.

Caballero grabbed Mann’s left arm and asked Mann if she wanted to have a drink. Mann responded

by punching Caballero in the face and kicking him in the legs.

        As Mann tried to escape, Caballero came at her and told her “wait, wait, it’s going to be

okay.” Caballero continued to grab at Mann, but she kept throwing punches at him. When Mann

reached her front door, she grabbed a baseball bat and struck Caballero on the back of his head.

Caballero ran into Mann’s front yard and collapsed. Mann immediately ran back inside her home

and called 911. Caballero fled before the police could respond.

        Mann gave the police Caballero’s description, and officers apprehended Caballero a short

while later when a police search dog found Caballero in a nearby shed, hiding under a mattress.

Mann positively identified Caballero as the intruder in her home.2 Caballero was charged with one

count of burglary of a habitation with intent to commit sexual assault (count one) and one count of

burglary of a habitation with intent to commit theft (count two). The indictment also contained an

enhancement allegation. A jury found Caballero guilty of both offenses. Caballero pleaded true to

the enhancement allegation and the jury assessed punishment at 60 years confinement as to count

one of the indictment and 35 years as to count two.

                                     SUFFICIENCY OF THE EVIDENCE

        In two issues, Caballero claims the evidence is legally and factually insufficient to support

his conviction for burglary of a habitation with intent to commit sexual assault. Caballero does not




        2
          … Caballero maintained that he was injured in a bar fight and that he had mistakenly entered Mann’s home,
thinking the home belonged to his friend.

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raise any complaints concerning his conviction for burglary of a habitation with intent to commit

theft.

         When considering a legal sufficiency challenge, we review all the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found all of the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex. App.—San Antonio 2006, pet. ref’d). We

affirm the trial court’s judgment if a rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.

1997). When considering a factual sufficiency challenge, we look at the evidence in a neutral light

giving almost complete deference to the jury’s determinations of credibility. Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008). We reverse only if the evidence supporting the verdict

is so weak that the verdict seems clearly wrong and manifestly unjust or if the evidence supporting

the verdict is outweighed by the great weight and preponderance of the available evidence. Watson

v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

         A person commits burglary if, without the effective consent of the owner, he enters a

habitation with the intent to commit a felony, theft, or an assault. TEX . PENAL CODE ANN .

§ 30.02(a)(1) (Vernon 2003). The indictment charged Caballero with having entered Mann’s

habitation with intent to commit sexual assault, which is a felony. Id. § 22.011(f). A person

commits the offense of sexual assault if he intentionally or knowingly “causes the penetration of the

anus or sexual organ of another person by any means, without that person’s consent; causes the

penetration of the mouth of another person by the sexual organ of the actor, without that person’s




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consent; or causes the sexual organ of another person, without that person’s consent, to contact or

penetrate the mouth, anus, or sexual organ of another person, including the actor.” Id. at (a).

       Intent is an essential element of the offense of burglary, which the State must prove beyond

a reasonable doubt. LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986); Coleman v.

State, 832 S.W.2d 409, 413 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). A defendant’s intent

to commit a felony must exist at the time of and accompany the entry into the habitation. Conrad

v. State, 154 Tex. Crim. 624, 230 S.W.2d 225, 226 (1950). The jury is exclusively empowered to

determine the issue of intent, and the events of a burglary may imply the intent with which the

burglar entered. Coleman, 832 S.W.2d at 413. A defendant’s intent to commit an offense “may be

inferred from [his] acts, words and conduct.” Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim.

App. 1991).

       Caballero argues the evidence is legally and factually insufficient to show his intent to

sexually assault Mann because there was no sexual connotation to his interaction with the

complainant.    Caballero asserts his conviction cannot stand because there is no evidence

demonstrating he: (1) exhibited his genitals to Mann; (2) verbally indicated to Mann that he wanted

to engage in sexual intercourse; (3) removed his clothing; (4) removed or attempted to remove

Mann’s clothing; or (5) touched Mann’s genitals. However, such evidence is not necessary to

support a finding of intent to commit sexual assault. See Johnson v. State, 397 S.W.2d 424, 425-26

(Tex. Crim. App. 1966) (concluding evidence was sufficient to support conviction for assault with

intent to rape where defendant locked doors to prevent others from entering house, said nothing, held

the complainant very tightly with a knife at her throat, and shoved complainant onto a couch several

times before fleeing).



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       The evidence in this case shows Caballero was seen around Mann’s residence on multiple

occasions, including the day before the burglary when Caballero was observed pacing outside

Mann’s home and peering into a window. The record reveals Caballero entered Mann’s residence

at nighttime (with two bottles of champagne), locked the doors to the home from the inside, and

armed himself with a kitchen knife. When Mann confronted Caballero about his presence in her

home, Caballero did not attempt to flee. Instead, Caballero grabbed Mann and asked her whether

she wanted to have a drink with him. The record further shows Caballero tried to stop Mann from

escaping and aggressively pursued her when she tried to get away from him. Having reviewed all

the evidence, we hold there is legally and factually sufficient evidence from which the jury could

have reasonably inferred Caballero intended to sexually assault Mann. See Johnson, 397 S.W.2d at

425-26. Accordingly, we overrule Caballero’s issues challenging the sufficiency of the evidence.

                                       DOUBLE JEOPARDY

       Although we conclude the evidence is legally and factually sufficient to support Caballero’s

conviction for burglary of a habitation with intent to commit sexual assault, we must modify the

judgment to vacate Caballero’s conviction for burglary of a habitation with intent to commit theft

because his two burglary convictions violate Caballero’s right to be free of double jeopardy. See

Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (recognizing “Appellate courts have

the jurisdiction and authority to review unassigned error” and “In the case of a double-jeopardy

violation, the issue may be addressed as an unassigned error when the violation is apparent from the

face of the record”). Both counts against Caballero arose from a single unlawful entry. When a

defendant is convicted of multiple counts of burglary based on a single unlawful entry, he suffers

multiple punishments for the same offense. See Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim.



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App. 2006) (“Applicant’s convictions violate double jeopardy because he was punished multiple

times for a single unlawful entry.”). Generally, when a defendant is convicted of multiple offenses

that are the “same” for double jeopardy purposes, the conviction for the “most serious” offense

should be retained and the other convictions should be set aside. Id. It is clear from the record that

Caballero’s conviction for burglary of a habitation with intent to commit sexual assault constitutes

the “most serious” offense of conviction. We therefore must retain Caballero’s conviction for

burglary of a habitation with intent to commit sexual assault and vacate his conviction for burglary

of a habitation with intent to commit theft.3

                                                   CONCLUSION

         Based on the foregoing, we vacate the judgment of conviction for burglary of a habitation

with intent to commit theft and affirm the judgment of conviction for burglary of a habitation with

intent to commit sexual assault.



                                                                Catherine Stone, Chief Justice

Publish




         3
          … The State concedes in a post-submission letter brief that we must vacate Caballero’s conviction for burglary
of a habitation with intent to commit theft.

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