Opinion issued July 24, 2014.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00892-CR
                           ———————————
                         ILSE A. BERNAL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1385116


                         MEMORANDUM OPINION

      A jury found Ilse Bernal guilty of burglary of a habitation with the intent to

commit theft,1 and the trial court assessed punishment at five years’ confinement,

suspended the sentence, and ordered Bernal to be placed on community

1
      See TEX. PENAL CODE ANN. § 30.02 (West 2011) (criminalizing entry of
      habitation with intent to commit theft).
supervision for five years. In two issues, Bernal contends that there was

insufficient evidence to support her conviction and that the trial court erred in

overruling her hearsay objection. We affirm.

                                   Background

      One afternoon, Samuel Ibanez returned to his trailer home and discovered

that it had been burglarized. When Ibanez entered the trailer, “everything was

disorderly.” The furniture, cushions, and trash can had been over-turned, and a

living room window had been broken. According to Ibanez, colognes, watches,

some sports shirts, and a pair of glasses were missing. Ibanez then went outside to

find someone who spoke English to report the burglary to the police. As Ibanez

walked back toward his trailer, he saw Bernal inside of it. According to Ibanez,

Bernal climbed out of the broken window, jumped over a fence, and ran away

carrying a backpack. Ibanez yelled at Bernal, asking her to stop and to leave the

backpack. Bernal kept running.

      Ibanez testified that he saw Bernal’s face and that he recognized her as a

neighbor who lived in a nearby trailer. When Bernal refused to stop, Ibanez went

to Bernal’s trailer to find her. Bernal was not home, but Ibanez spoke with Bernal’s

mother.

      Over Bernal’s objection, the trial court allowed Ibanez to respond to the

prosecutor’s question, “What did you ask [Bernal’s] Mother?” Ibanez testified that


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he told Bernal’s mother that her daughter had “robbed” his trailer. According to

Ibanez, the mother responded, saying that “she would be responsible, that she

would pay for everything and that later when her husband came, we could talk.”

      Bernal testified in her own defense, saying that she was at a friend’s house at

the time of the burglary, that “I wouldn’t even do that [commit burglary],” and that

“there’s no way” that she could have fit through the broken living room window.

      The jury found Bernal guilty of burglary of a habitation with the intent to

commit theft and assessed punishment at five years’ confinement. However, the

trial court suspended the sentence and placed Bernal under community supervision

for five years.

      Bernal timely appealed.

                            Sufficiency of the Evidence

      Bernal first contends that there was insufficient evidence to prove beyond a

reasonable doubt that she committed the burglary because “there is no physical

evidence in the record linking [her] to the burglary.”

A.    Standard of review

      We review a challenge to the sufficiency of the evidence under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89

(1979). See Brooks v. State, 323 S.W.3d 893, 894–913 (Tex. Crim. App. 2010);

Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet.


                                          3
ref’d). Under the Jackson standard, evidence is insufficient to support a conviction

if, considering all the record evidence in the light most favorable to the verdict, no

rational factfinder could have found that the State proved each essential element of

the charged offense beyond a reasonable doubt. See Jackson, 443 U.S. at 317–19,

99 S. Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We consider both direct and circumstantial evidence and all reasonable

inferences that may be drawn from the evidence in making our determination.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      The Jackson standard defers to the factfinder to resolve any conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from “basic

facts to ultimate facts.” Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89;

Clayton, 235 S.W.3d at 778. An appellate court presumes the factfinder resolved

any conflicts in the evidence in favor of the verdict and defers to that resolution,

provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793. The State need not disprove all reasonable alternative hypotheses that are

inconsistent with the defendant’s guilt. Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012); Cantu v. State, 395 S.W.3d 202, 207 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d).

      Evidence can be insufficient when (1) the record contains no evidence

probative of an element of the offense; (2) the record contains a mere “modicum”


                                          4
of evidence probative of an element of the offense; (3) the evidence conclusively

establishes a reasonable doubt; or (4) the acts alleged do not constitute the criminal

offense charged. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786,

2789 & n.11; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). If an appellate court finds the evidence insufficient under

this standard, it must reverse the judgment and enter an order of acquittal. See

Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).

B.     Evidence of burglary

       A person commits burglary of a habitation if she, “without the effective

consent of the owner . . . enters a habitation . . . not then open to the public, with

intent to commit a felony, theft, or an assault . . . .” TEX. PENAL CODE ANN. § 30.02

(West 2011). A person “enters” a habitation if she intrudes any part of her body or

any physical object connected with her body into the habitation. Id. § 30.02(b)(1)–

(2).

       A lack of fingerprint or other physical evidence alone does not preclude a

jury from concluding that a person has committed burglary, and the testimony of a

single eyewitness can be sufficient to support a jury’s finding of guilty. See

Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Davis v. State, 177

S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Furthermore, a

burglar’s identity can be proven by circumstantial evidence. See Earls v. State, 707


                                          5
S.W.2d 82, 85 (Tex. Crim. App. 1986); Smith v. State, 56 S.W.3d 739, 744 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref’d) (noting that “[i]dentity may be

proved through direct or circumstantial evidence, and through inferences.”). And

while a conviction cannot be based merely on a defendant’s presence at the scene

of the offense, when combined with other facts, it may be sufficient to prove a

defendant’s guilt. See, e.g., Phillips v. State, 178 S.W.3d 78, 81 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d) (holding that there was sufficient evidence of

burglar’s identity even though burglar was not seen entering or exiting habitation

because there was evidence placing burglar inside fenced and locked backyard

where stolen goods were stored).

      Bernal cites Rollerson v. State, 196 S.W.3d 818, 821–22 (Tex. App.—

Texarkana 2006), aff’d, 227 S.W.3d 718 (Tex. Crim. App. 2007), to support her

contention that there was insufficient evidence to establish her identity as the

burglar when there was no physical evidence or fingerprints connecting her to the

burglary. In Rollerson, there was insufficient evidence that the defendant had

committed the burglary when “[n]o one saw [the defendant] in [the complainant’s]

house. No fingerprints were found. The only pieces of evidence recovered from the

burglary were the television and binoculars . . . .” Id. at 821. Based on the

defendant’s uncontroverted testimony that he did not actually possess the stolen




                                         6
property, the evidence was “too weak” to prove beyond a reasonable doubt that the

defendant had committed the burglary. Id. at 822.

      Unlike Rollerson, the evidence was sufficient for a rational factfinder to

conclude that Bernal committed the burglary. First, Ibanez testified that he saw

Bernal inside of his house. According to Ibanez, Bernal then climbed out of the

broken window, jumped over a fence, and ran away from his trailer.

      Second, Ibanez testified that he was able to catch up to Bernal and that he

asked her to “please give me the backpack” because “that’s where she had

everything she had taken.” But Bernal refused and escaped. At trial, Ibanez

positively identified Bernal as the person who refused to return the backpack.

       Ibanez’s testimony that he saw Bernal inside and outside of his house and

his positive, in-court identification of her were sufficient evidence to support the

jury’s conclusion that Bernal committed the burglary. While Bernal offered an

alibi, we presume that the jury reconciled any conflicts in testimony, determined

the weight that should be given to the evidence, and made reasonable inferences

drawn from the facts. See Williams, 235 S.W.3d at 750. Accordingly, we conclude

that, when viewed in the light most favorable to the verdict, the evidence was

sufficient to support the jury’s conclusion that Bernal committed burglary of a

habitation with the intent to commit theft.




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                                       Hearsay

      Bernal next contends that the trial court erred in allowing Ibanez to testify

about a conversation he had with Bernal’s mother regarding Bernal’s alleged

involvement in the burglary because it was inadmissible hearsay.

A.    Standard of review

      We review a trial court’s ruling on the admission or exclusion of evidence

for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009,

pet. dism’d). We will uphold the trial court’s ruling unless it falls outside the “zone

of reasonable disagreement.” Tillman, 354 S.W.3d at 435; Walker, 327 S.W.3d at

22. If the trial court’s evidentiary ruling is reasonably supported by the record and

correct on any theory of applicable law, we will uphold the decision. De La Paz v.

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Tarley v. State, 420 S.W.3d

204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).

B.    Whether the trial court erred by admitting Ibanez’s statement

      “‘Hearsay’ is an out-of-court statement, other than one made by the

declarant while testifying at a trial or hearing, offered in evidence to prove the truth

of the matter asserted.” TEX. R. EVID. 801(d). An extrajudicial statement that is

offered to show what was said, rather than to prove the truth stated therein, does

not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.


                                           8
1995); see Ellis v. State, 99 S.W.3d 783, 788 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d).

      To preserve an error for appellate review, the complaining party must make

a timely request, objection, or motion with sufficient specificity to apprise the trial

court of the complaint and to afford the trial court an opportunity to rule on the

objection. TEX. R. APP. P. 33.1(a)(1)(A); see Saldano v. State, 70 S.W.3d 873,

886–87 (Tex. Crim. App. 2002); Pipkin v. State, 329 S.W.3d 65, 69 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d). If a defendant fails to object, she forfeits her

right to challenge the alleged error on appeal unless the alleged error was

fundamental and affected substantial rights. See TEX. R. APP. P. 33.1(a)(1)(A);

Smith v. State, 420 S.W.3d 207, 214 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d) (noting that “a substantial right is affected when an error has a substantial

and injurious effect or influence in determining a jury’s verdict.”).

      At trial, the following colloquy occurred:

      PROSECUTOR:                       Okay. You said you went to speak to
                                        someone’s mother. Whose mother did
                                        you speak to?

      IBANEZ:                           With her [Bernal’s] mother.

      PROSECUTOR:                       And this is at the trailer that’s only a
                                        few trailers down?

      IBANEZ:                           Yes, where she — where she live.

      PROSECUTOR:                       What did you ask [Bernal’s] Mother?

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      IBANEZ:                        My friend and I went down there
                                     together and we told her—and we
                                     said, you know, that we were—

      DEFENSE COUNSEL:               Objection, Your Honor, hearsay.

      TRIAL COURT:                   Overruled.

      IBANEZ:                        We said that we were embarrassed
                                     and he said—she said, well, when her
                                     husband came home.

      PROSECUTOR:                    Can you ask him—what did you ask
                                     the mother, just what did you ask her?

      IBANEZ:                        We went and we told her that her
                                     daughter had robbed us.

      PROSECUTOR:                    Okay. And how did she respond to
                                     you?

      IBANEZ:                        At that time she said that she would
                                     be responsible, that she would pay for
                                     everything and that later when her
                                     husband came, we could talk. And
                                     then I went and talked to the man and
                                     he told me that he wasn’t going to
                                     take charge of it, he wasn’t going to
                                     be responsible for that.

      Bernal contends that the statements “her daughter had robbed [them],” that

“she would be responsible,” and that she would “pay for everything” were hearsay

because they were offered to prove “the truth of the matter that [Bernal] had

committed the burglary and was guilty.” See Dinkins, 894 S.W.2d at 347.

      Bernal’s counsel timely objected when the prosecutor first asked “What did

you ask the mother?” And the trial court permitted Ibanez to respond over her
                                       10
objection. Although Ibanez was only asked about his question to Bernal’s mother,

he testified about his own out-of-court statement that he told the mother that Bernal

had robbed him. The question to the mother would not have been hearsay if it was

not offered for the truth of the matter asserted, did not imply a statement, and was

offered to prove that Ibanez had spoken with Bernal’s mother, not that Bernal had

committed the robbery. See TEX. R. EVID. 801(c). Bernal did not object that

Ibanez’s answer was nonresponsive. But because Ibanez’s answer was interrupted

by the objection, Ibanez did not make any affirmative statement about the robbery.

When the prosecutor followed up to ask two additional questions to explain the

conversation, Bernal’s counsel did not again object and Ibanez testified about the

mother’s response. By failing to timely object, Bernal waived any complaint on

appeal.2

      Because Bernal waived any error, we overrule his second issue.




2
      Even assuming that the trial court erroneously admitted Ibanez’s testimony, any
      error was harmless and did not affect Bernal’s substantial rights because the jury
      had already heard ample testimony regarding Bernal’s guilt before those
      statements were admitted. See TEX. R. APP. P. 44.2(b); see, e.g., Johnson v. State,
      43 S.W.3d 1, 4 (Tex. Crim. App. 2001) (holding that any error having no effect or
      only slight influence on verdict was harmless when other evidence existed in
      record to prove defendant’s guilt); Campos v. State, 317 S.W.3d 768, 779 (Tex.
      App.—Houston [1st Dist.] 2010, pet. ref’d) (holding that any error in trial court’s
      admission of hearsay evidence was harmless when there was other sufficient
      evidence proving defendant’s guilt).
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                                   Conclusion

      Having overruled both of Bernal’s issues, we affirm the trial court’s

judgment.

                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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