                                   NO. 07-05-0109-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 OCTOBER 12, 2006
                          ______________________________

                                    DONALD HICKS,

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2005-408,202; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Donald Hicks appeals his conviction for burglary of a habitation with intent to commit

theft. Through two issues, he contends that the trial court erred in failing to 1) give an

instruction on the lesser-included offense of burglary of a building, and 2) grant a mistrial

after illegally obtained evidence was admitted during the punishment phase. We affirm the

judgment.
       Background

       The record illustrates that appellant burglarized rental property leased to a young

lady as a residence. The owner described the property as “a home like all of the other

homes in Lubbock,” with a bathroom, kitchen and roof. It was a structure “meant for

someone to live in,” she continued. So too was it wired for electricity. And, while the gas

to the heater had been turned off due to the presence of a carbon monoxide leak, the

property owner testified that this condition did not affect the “hot water heater or anything

else.” The matter was also “turned . . . over to [the] plumber . . . and he took care of it,”

she continued.

       At the time of the burglary, the house was vacant, though several weeks remained

in the lease term. Apparently, the tenant had decided to return home and live with her

parents. She had also removed her furnishings and personalty from it. Given this

circumstance, the owner was attempting to re-let the property to others and had recently

met a prospective tenant at the locale for that purpose.

       Issue 1 - Lesser-Included Offense

       In his first issue, appellant attacks the trial court’s failure to instruct the jury on the

offense of burglarizing a building.       Such an instruction was mandated because it

purportedly constituted a lesser-included offense of burglarizing a habitation and the

evidence warranted its submission. We disagree and overrule the issue.

       An instruction on a lesser-included offense is proper when 1) the lesser-included

offense is included within the proof necessary to establish the offense charged, and 2)

some evidence exists in the record that would permit a rational jury to find that if the

defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d


                                                2
666, 672-73 (Tex. Crim. App. 1993). To satisfy the second requirement, it is not enough

that the jury may disbelieve crucial evidence pertaining to the greater offense. Bignall v.

State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). There must be some evidence directly

germane to the lesser offense affirmatively showing that appellant committed only the

lesser offense. Id. Finally, anything more than a scintilla of evidence is sufficient to entitle

a party to the charge. Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).

        The Court of Criminal Appeals has recognized that burglary of a building may be a

lesser-included offense of burglarizing a habitation. See Jones v. State, 532 S.W.2d 596,

601 (Tex. Crim. App. 1976), overruled on other grounds by Moss v. State, 574 S.W.2d 542

(Tex. Crim. App. 1978) (recognizing that it can be). Yet, as stated above, there also must

be evidence of record affirmatively showing that appellant burglarized only a building as

opposed to a habitation before establishing his entitlement to the instruction in question.

And, according to appellant, that data consisted of “no evidence of live utilities, no person

living in [the house] at the time in question and no furnishings, bedding or other items

common to overnight accommodations.”1 One cannot dispute that these indicia are

pertinent in determining whether a structure constitutes a building as opposed to a

habitation.2 They are some of a group worthy of consideration. Indeed, our Court of

Criminal Appeals directed that an amalgam of indicia be assessed such as 1) whether the


        1
           The rep resentation that the abode lack ed “live utilities” is unfounded. The home was wired for
electricity and no one testified that it had been disconnected or was otherwise inoperative. Nor did anyone
state that the gas or wa ter ha d be en d isconne cted . At best, it appeared that the gas to the heater had been
turned off tem pora rily. That problem was rem edied by a plumb er, however, and it “really didn’t affect the hot
water heater or anything else.”

        2
        Statu te defines a habitation “as a structure or vehicle that is adapted for the overnight
accomm odation of persons . . . .” T EX . P EN . C ODE A N N . §30.01(a) (Vernon 2003). In turn, a building is “any
enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture,
ornam ent, or use.” Id. §30.01(2).

                                                        3
facility was being used as a residence at the time of the offense, 2) whether it contained

bedding, furniture, utilities, or other belongings common to a residence, and 3) whether it

was of a character “that it was probably intended to accommodate persons overnight . . .

.” Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989).3 While “[a]ll of

these factors are relevant,” “none are essential or necessarily dispositive,” according to the

court. Id. And, therein lies the resolution to the dispute before us.

        It may be that the home was vacant and lacked furnishings. Yet, that alone did not

render the abode something other than “a structure or vehicle that is adapted for the

overnight accommodation of persons.” TEX . PEN . CODE ANN . §30.01(a) (Vernon 2003) (so

defining a habitation). Again, no indicia is essential or necessarily dispositive. Blankenship

v. State, 780 S.W.2d at 209; see In re E.P., 963 S.W.2d 191, 193 (Tex. App.–Austin 1998,

no pet.) (holding that the apartment was not a building simply because it was vacant, given

the other indicia present). Furthermore, no other evidence appears of record suggesting

that the structure lacked the status as a habitation. Rather, the evidence addressing

whether the abode was used as a residence or had a character illustrating that it was

probably intended to accommodate people overnight depicted the structure to be a

habitation rather than a building. For instance, the owner considered the place as a house

like other houses in Lubbock, and it was “meant to be lived in.” Not only was it wired for

electricity but also plumbed for water and gas. So too did it have a kitchen, bathroom,

water heater, heater, and roof. These indicia are akin to those in Blankenship and,


        3
        The issue in Bla nkenship differed from that involved here. W e are concerned with whether th e
evidence entitled appellant to an instruction on a lesser-included offense. In Bla nkenship, the court was
concerned with whether legally sufficient evidence supported the jury’s verdict. And, while resolution of each
may depend upon the definitions attribute d to the words h abitation an d bu ilding, the tests to be applied differ.



                                                         4
according to that court, sufficed to establish the locale was a habitation. Additionally,

though it may have been vacant, the house was in the process of being re-leased.

       Consideration of all the Blankenship criteria seems only imperative in a situation like

that before us. This is so because evidence cannot be taken out of context to determine

an appellant’s entitlement to an instruction on a lesser-included offense. Prewitt v. State,

133 S.W.3d 860, 863 (Tex. App.–Amarillo 2004, pet. ref’d). So, given the directive in

Blankenship that no one factor is essential or necessarily dispositive, we can only but

conclude that the relevant context for purposes of assessing whether a structure is a

building or a habitation is the totality of the Blankenship criteria. In other words, it is not

enough to simply pluck one indicia and use it as basis for justifying the submission of the

charge sought by appellant here. Instead, the issue calls for all to be addressed.

       Simply put, the minimal evidence cited by appellant (even if accepted as true) did

not alone permit a rational factfinder to conclude that if he burglarized anything it was only

a building and not a habitation. The abode could be vacant and without furnishings and

still be a habitation. See Hunt v. State, No. 13-01-0243-CR, 2002 Tex. App. LEXIS 2780

at *11-12 (Tex. App.–Corpus Christi April 18, 2002, no pet.) (not designated for publication)

(holding that the appellant was not entitled to an instruction on the lesser-included offense

of burglarizing a building even though he believed the house was abandoned, the owner

had not occupied it for several months given its need for repair, at least one room within

it was empty, and portions of it were boarded); Mathes v. State, No. 14-93-0311-CR, 1995

Tex. App. LEXIS 2180 at *3-5 (Tex. App.–Houston [14th Dist.] September 7, 1995, no pet.)

(not designated for publication) (holding that the appellant was not entitled to the




                                              5
instruction although the house apparently was vacant at the time of but had been lived in

one year before the burglary).

      Issue Two – Mistrial

       Next, appellant contends that the trial court erred in not granting him a mistrial

during the punishment phase of the trial due to the admission of evidence (drugs)

purportedly obtained through illegal means. We overrule the issue for two reasons.

       First, the record discloses that appellant withheld all objection to the evidence until

the State finished its examination of the witness through which the evidence was proffered.

By that time, the State not only illustrated how the evidence was obtained but also of what

it consisted. Appellant attempts to justify the delay by contending that he did not know of

the evidence’s inadmissibility until he questioned the witness on voir dire. At that time, he

purportedly discovered that the reason for the stop mentioned by the officer in his written

report (i.e. traffic violation) differed from that uttered at trial (i.e. witnessing what he

believed to be a narcotics transaction). Yet, one need only read the record to discover that

the purported difference became apparent early in the officer’s testimony and long before

he described the fruits of his search. For instance, the reasons given by the officer at trial

to justify the stop were propounded in response to the 19th question asked by the State

during its direct examination of the witness. Assuming that appellant had the officer’s

written report (as appellant informed the court that he did), then he was in a position to

compare that response with the contents of the report. At that point the difference could

have been uncovered, and effort could have been made to develop the matter and exclude

the testimony. Instead, appellant remained silent and allowed the State to propound an

additional 40 plus questions about the event and the contraband discovered. Only after


                                              6
the prosecutor had passed the witness to appellant for cross-examination did the appellant

request leave to interrogate the witness outside the jury’s presence. By that time, the jury

had heard (without objection) all that which appellant hoped to exclude. Given the delay

of appellant when the potential grounds for objection had become apparent much earlier,

he cannot be heard to complain about the trial court’s refusal to grant him a mistrial.4

Routier v. State, 112 S.W.3d 554, 575 (Tex. Crim. App. 2003) (holding that unless an

objection is uttered at the earliest opportunity, it is waived).

       Second, the record also reveals that the trial court directed the jurors to disregard

the evidence in question immediately before the litigants began their summations.

Authority requires us to presume that they heeded the admonishment. Gardner v. State,

730 S.W.2d 675, 696 (Tex. Crim. App. 1987). Moreover, we find no reason to deviate from

that rule especially since the evidence in question was redundant of other crimes (e.g.,

three prior felony convictions for the possession or delivery of controlled substances)

committed by appellant and admitted to at trial.

       The judgment is affirmed.



                                                              Brian Quinn
                                                              Chief Justice
Publish.




       4
           The rec ord also reveals that th e trial court deem ed the objec tion untim ely.

                                                          7
