                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 2-08-301-CR


PATRICK EUGENE SANDERS                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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      A jury convicted Appellant Patrick Eugene Sanders of burglary of a

building and assessed his punishment at seventeen years’ confinement. The

trial court sentenced him accordingly. On appeal, Appellant contends in seven

issues that the evidence is legally and factually insufficient to support his

conviction and that the trial court erred by refusing to hold a hearing on his

motion for new trial. Because we hold that the evidence is legally and factually


      1
      See Tex. R. App. P. 47.4.
sufficient to support his conviction and because the trial court has now held a

hearing on Appellant’s motion for new trial, we affirm the trial court’s judgment.

Legal Sufficiency of the Evidence

      The indictment charges that Appellant ―did then and there intentionally,

without the effective consent of Grady Anderson, the owner thereof, enter a

building not then and there open to the public with intent to commit theft‖ and, in

Paragraph Two, that he ―did then and there intentionally or knowingly, without the

effective consent of Grady Anderson, the owner thereof, enter a building and did

attempt to commit or commit theft.‖2

      In his first three issues, Appellant contends that the evidence is legally

insufficient to prove intent to commit theft, attempt to commit theft, and a

completed theft; that is, he contends that the State failed to prove burglary under

any of the three theories. In reviewing the legal sufficiency of the evidence to

support a conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.3

      In determining the legal sufficiency of the evidence to show an appellant=s

intent, and faced with a record that supports conflicting inferences, we Amust


      2
       See Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003) (providing
possible theories of burglary).
      3
       Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

                                         2
presumeCeven if it does not affirmatively appear in the recordCthat the trier of

fact resolved any such conflict in favor of the prosecution, and [we] must defer to

that resolution.@4 A person commits attempt if ―with specific intent to commit an

offense, he does an act amounting to more than mere preparation that tends but

fails to effect the commission of the offense intended.‖5

      Officer Kaare G. Martin testified that about 4:50 a.m. on January 14, 2008,

he received a burglar alarm call regarding the Greater St. Paul Missionary Baptist

Church in Fort Worth, Tarrant County, Texas. He testified that the church is in a

residential area and that it did not appear that it was in use by its congregation

when he arrived. Martin parked on the west end and then exited his car to

explore the building. He observed no signs of forced entry. Martin could see

inside the building through the exterior glass door and then through a window in

the interior wooden door on the northeast side. Martin saw a light on in the

kitchen area, which was on the southeast corner of the building. In that area,

about forty-five feet away from his vantage point, Martin also saw a tall male

putting a white plastic bag inside a brown paper bag.       The man was facing

Martin. The brown paper bag was on the table. Martin testified that it appeared

that the man was trying to take items. Martin walked around to the south side of

the building, where he saw light through an open window. Martin could not see


      4
       Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
      5
       Tex. Penal Code Ann. § 15.01(a) (Vernon 2003).

                                         3
anyone through the window, but he heard ―rustling around noises.‖              Martin

radioed for backup and waited underneath the window for backup to arrive. He

forgot to turn his radio down until after his radio made a ―kind of loud‖ noise.

      Martin’s backup, Officer Fincher, arrived. Martin then saw the kitchen light

go out. He moved to the east side of the building where there was an exterior

door. Martin heard what sounded like a lock being unlatched, and then he saw

the person he had seen putting the plastic bag into the brown paper bag,

Appellant, exit the building through that door. The police had not announced

their presence, nor had they done anything to force Appellant out of the building.

      Martin was between eight and ten feet from Appellant when he left the

building. Martin testified that it had been pretty dark. Martin observed Appellant

for ―[m]aybe thirty seconds‖ and did not see a small cut on Appellant’s neck.

Martin ordered Appellant to the ground. Appellant did not have any property on

his person that had been removed from the church, nor did he have any

weapons.    Officer Fincher came around the building and took Appellant into

custody.

      Martin then went into the kitchen area where he had seen the light on. He

saw the brown paper sack lying on the floor behind the table. He looked inside it

and found a white plastic bag. Inside the plastic bag, he saw two bags of potato

chips and one large canister of powdered lemonade. He testified that the white

plastic bag and the brown paper bag were the same ones that he had seen in

Appellant’s hand a few minutes earlier.

                                          4
      Martin testified that he noticed that the kitchen window was still open and

also said that the police searched throughout the church but found no other

person, no damage, and nothing else out of the ordinary.

      Reverend Grady Anderson, senior pastor of the church, testified that the

church was at the eastern edge of the Poly neighborhood and the western edge

of the Stop Six neighborhood.     He recalled getting a call from the church’s

burglar alarm company on January 14, 2008, indicating that zone four, which

contains the sanctuary, had been breached. Anderson called the police and then

met them at the church about twelve minutes later. By that time, the police had

apprehended Appellant.

      Anderson testified that the church was not being used by its members on

that early Monday morning, that the security alarm had been activated, and that

no one had permission to be in the church at that time. He specifically testified

that Appellant did not have permission to be in the church.       Anderson also

testified that the purpose of the kitchen was to prepare food for the church’s

―social functions, for funerals, for vacation Bible school, or for Thanksgiving

dinners and other occasions like that.‖ Anderson further testified that the church

ran a food bank on site. Finally, he testified that church members and outside

donors paid for all the food.

      The evidence in the light most favorable to the verdict shows that after a

burglar alarm went off, Appellant was spotted holding food that was not his while

standing inside a building that he had no permission to be in. Based on the

                                        5
appropriate standard of review, we hold that the evidence is legally sufficient to

support Appellant’s conviction for burglary. That is, we hold that the evidence is

legally sufficient to prove that Appellant ―did then and there intentionally, without

the effective consent of Grady Anderson, the owner thereof, enter a building not

then and there open to the public with intent to commit theft‖ and ―did then and

there intentionally or knowingly, without the effective consent of Grady Anderson,

the owner thereof, enter a building and . . . attempt to commit . . . theft.‖ We

therefore overrule his first and second issues and need not reach his third issue.6

Factual Sufficiency of the Evidence

      In his fourth, fifth, and sixth issues, Appellant contends that the evidence is

factually insufficient to prove intent to commit theft, attempt to commit theft, or a

completed theft.    When reviewing the factual sufficiency of the evidence to

support a conviction, we view all the evidence in a neutral light, favoring neither

party.7 We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder=s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder=s


      6
      See Tex. R. App. P. 47.1; Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim.
App. 2007) (―When the trial court's charge authorizes the jury to convict on more
than one theory, as it did in this case, the verdict of guilt will be upheld if the
evidence is sufficient on any of the theories.‖).
      7
        Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson
v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).

                                         6
determination is manifestly unjust.8 To reverse under the second ground, we

must determine, with some objective basis in the record, that the great weight

and preponderance of all the evidence, although legally sufficient, contradicts the

verdict.9 Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder=s determinations, Aparticularly those

determinations concerning the weight and credibility of the evidence.@10

Evidence is always factually sufficient when it preponderates in favor of the

conviction.11    When reviewing a case comprised wholly of circumstantial

evidence, the standard of review is the same as it is for reviewing cases in which

direct evidence exists.12

      Appellant contends that Martin’s opinion that Appellant was trying to take

items was a conclusory assumption. Yet Martin saw Appellant putting the plastic

bag in the paper sack and found the lemonade and chips inside the plastic bag.

Appellant also argues that any deduction that Appellant fled when he heard

Martin’s police radio through the open window is pure speculation. Yet the jury is




      8
       Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414–15, 417.
      9
       Watson, 204 S.W.3d at 417.
      10
       Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman,
280 S.W.3d at 246.
      11
          Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.
      12
          King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

                                         7
allowed to make reasonable inferences.13 Applying the appropriate standard of

review, and deferring to the jury’s determinations of the facts, Aparticularly those

determinations concerning the weight and credibility of the evidence,@14 we

cannot conclude that the jury’s determination of Appellant’s guilt is manifestly

unjust. We overrule Appellant’s fourth and fifth issues and do not reach his sixth

issue.15

Hearing on Motion for New Trial

        In his seventh issue, Appellant contends that the trial court erred by

refusing to hold a hearing on his motion for new trial. We abated and remanded

this case for a hearing on Appellant’s motion for new trial, and we have reviewed

the record of that hearing. Appellant’s seventh issue is therefore overruled as

moot.




        13
           Park v. State, 8 S.W.3d 351, 352 (Tex. App.—Amarillo 1999, no pet.).
        14
           Johnson, 23 S.W.3d at 9; see Steadman, 280 S.W.3d at 246.
        15
           See Tex. R. App. P. 47.1; Hooper, 214 S.W.3d at 14.

                                          8
Conclusion

      Because we have overruled all of Appellant’s seven issues, we affirm the

trial court’s judgment.



                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 30, 2010




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