Opinion filed May 16, 2019




                                      In The


          Eleventh Court of Appeals
                                   __________

                             No. 11-17-00129-CR
                                 __________

                  PEDRO HERNANDEZ JR., Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                            Haskell County, Texas
                          Trial Court Cause No. 6888


                     MEMORANDUM OPINION
      Appellant, Pedro Hernandez Jr., appeals his conviction for the second-degree
felony offense of burglary of a habitation. In two issues on appeal, Appellant argues
that the evidence was insufficient to convict him of burglary of a habitation. We
affirm.
                                 Background Facts
      On the morning of the alleged offense, Chief Chris Mendoza of the Munday
Police Department received information that Appellant was in front of a local
business. Chief Mendoza, along with another Munday police officer, went to the
local business and questioned Appellant about his purpose for being there.
Appellant told Chief Mendoza, among other things, that he needed a ride to the
Rochester/Rule area because “he and his girlfriend got in a fight” and he thought
that “someone was going to come beat him up.” Chief Mendoza agreed to give
Appellant a ride, but he clarified that he could only drive Appellant to Knox City.
At trial, Chief Mendoza testified that Appellant seemed confused during their
conversation.
        Chief Mendoza dropped Appellant off in Knox City with an officer from the
Knox County Sheriff’s Department, Chief Deputy Jose Rojo. Chief Deputy Rojo
drove Appellant to Rochester. Chief Deputy Rojo testified that, during the drive,
Appellant was “incoherent” and was concerned that “people . . . were going to kill
him.” Chief Deputy Rojo dropped Appellant off at a residence where Appellant used
to live. Appellant immediately ran from Chief Deputy Rojo’s vehicle up to the
home.
        When Appellant entered the home, Appellant brandished a knife and knocked
over various pieces of furniture and personal property. The residents of the home
instructed Appellant to leave. Appellant jumped through a window and fled to
another home nearby, which was occupied by Brian Keith Amos and his two
daughters, Brittany and Tyreonna Amos.
        Tyreonna was outside the home at the time Appellant approached. Appellant
ran up to Tyreonna and told her that “someone was shooting at him” and asked if he
could come inside. Tyreonna told Appellant that she needed to ask her father first.
When she tried to enter her home through the back door, it was locked, so Appellant
broke down the door and both he and Tyreonna entered. Brian testified that he did
not give Appellant permission to enter his home.


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      Brian, upon Appellant’s entrance to the home, wrestled Appellant to the floor
and restrained him. Brittany called 9-1-1 on Brian’s cell phone. Brian held
Appellant for twenty-five to thirty minutes as they waited for the police. According
to Brian, Appellant asked to be let go “because they’re after [him].” Brian testified
that Appellant told him: “If you can just let me make a call, I can get somebody to
come and I can leave.”
      Brian permitted Appellant to make a phone call. Brian testified that Brittany
handed Appellant the cell phone. Appellant called 9-1-1. At some point after the
call, Appellant “bolted out the door,” ran into the fence, jumped over the fence, and
ran to another home nearby. Although Brian had told a police dispatcher that
Appellant had “busted” through his door, Brian testified at trial that he had instead
opened the door to allow Appellant to leave. In any event, Appellant ran off with
Brian’s cell phone; neither Brian nor anyone in his family gave Appellant consent
to take his cell phone.
      Appellant broke into another home. When Chief Deputy Kenny Barnett of
the Haskell County Sheriff’s Department arrived on scene, Appellant exited that
home, approached Chief Deputy Barnett, and told him that “people were after him.”
Chief Deputy Barnett described Appellant as hysterical and believed that Appellant
was under the influence of a controlled substance. Deputy Christopher Keith of the
Haskell County Sheriff’s Department also arrived on scene. He searched the most
recent home that Appellant had broken into. Deputy Keith found Brian’s cell phone
outside a window that he believed Appellant had broken through.
      None of the witnesses observed anyone following Appellant. Chief Deputy
Barnett testified that, in his opinion, Appellant “actually believed somebody was
after him.”
      After the jury heard the evidence, it found Appellant guilty of burglary of a
habitation.   The trial court assessed punishment and sentenced Appellant to
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confinement for fifty years in the Institutional Division of the Texas Department of
Criminal Justice. This appeal followed.
                                      Analysis
      In two issues, Appellant challenges the sufficiency of the evidence supporting
his conviction for burglary of a habitation. In his first issue, Appellant argues that
the evidence is insufficient to support his conviction because there was no evidence
that he intended to, or that he did, commit theft of Brian’s cell phone. In his second
issue, he claims that the trial court erred when it denied his motion for directed
verdict because the evidence was insufficient to prove that he intended to, or that he
did, commit theft of Brian’s cell phone.
      We review a challenge to the trial court’s denial of a motion for a directed
verdict as a challenge to the sufficiency of the evidence. See Williams v. State, 937
S.W.2d 479, 482 (Tex. Crim. App. 1996). The standard of review for sufficiency of
the evidence is whether any rational trier of fact could have found Appellant guilty
beyond a reasonable doubt of the charged offense. Jackson v. Virginia, 443 U.S.
307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see
also Fernandez v. State, 479 S.W.3d 835, 837–38 (Tex. Crim. App. 2016). We
review the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). The trier of fact may believe all, some, or none
of a witness’s testimony because the trier of fact is the sole judge of the weight and
credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref’d).
We defer to the trier of fact’s resolution of any conflicting inferences raised by the
evidence and presume that the trier of fact resolved such conflicts in favor of the
verdict. Jackson, 443 U.S. at 326; Zuniga v. State, 551 S.W.3d 729, 733–34 (Tex.
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Crim. App. 2018); Brooks, 323 S.W.3d at 899; Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
      Appellant was charged by indictment with burglary of a habitation. TEX.
PENAL CODE ANN. § 30.02(a)(3) (West 2019). The indictment stated that Appellant
“did then and there, intentionally or knowingly enter a habitation without the
effective consent of Brian Amos, the owner thereof, and attempted to commit or
committed theft of property, to-wit: a cell phone, owned by Brian Amos.”
      As relevant in this case, the elements of burglary of a habitation are as follows:
(1) a person, (2) intentionally or knowingly, (3) enters a habitation, (4) without the
effective consent of the owner, and (5) commits or attempts to commit a felony,
theft, or assault. Id.; Davila v. State, 547 S.W.2d 606, 608 (Tex. Crim. App. 1977);
see Rivera v. State, 808 S.W.2d 80, 92 (Tex. Crim. App. 1991) (State is not required
to prove that Appellant intended to commit theft when he entered the habitation).
Appellant only contests the sufficiency of the evidence with respect to the fifth
element.
      A theft is committed when a person “unlawfully appropriates property with
intent to deprive the owner of property.” PENAL § 31.03(a). Appropriation of
property is unlawful if committed without the owner’s effective consent.             Id.
§ 31.03(b)(1); see id. § 31.01(4)(B) (“appropriate” means “to acquire or otherwise
exercise control over property other than real property”). Appropriation of property
is “without the owner’s effective consent” if it is without his “assent in fact.” Id.
§ 31.03(b)(1), § 1.07(a)(11) (West Supp 2018); Thomas v. State, 753 S.W.2d 688,
691–92 (Tex. Crim. App. 1988). “[A]ssent in fact” can be express or apparent.
PENAL § 1.07(a)(11); Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013).
      Appellant argues that there is no evidence showing that he unlawfully
appropriated Brian’s cell phone with the intent to deprive him of it. Although
Appellant admits that he took the phone, he contends that the taking was inadvertent.
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He claims that proof he did not intend to deprive Brian of the cell phone is found in
the following facts: he mistakenly thought people were chasing him; Brian allowed
him to stand up and opened the door for him to leave; he surrendered to the police
shortly after he ran from Brian’s home (before he was able to return the cell phone);
and he did not steal any other property. We disagree.
      Appellant forcefully entered Brian’s home. Brian testified that he did not give
Appellant consent to enter, so he restrained Appellant. Then, after Appellant asked
to “make a call,” Brittany gave Appellant Brian’s cell phone, and Brian allowed
Appellant to make the call. However, Appellant did not just make a phone call: he
fled with Brian’s cell phone. Brian testified that neither he nor anyone in his family
authorized Appellant to take his cell phone.
      From this evidence, the jury could have concluded that Appellant took Brian’s
cell phone without Brian’s effective consent. See Mueshler v. State, 178 S.W.3d
151, 156 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); see also Northup v.
State, No. 13-07-00581-CR, 2009 WL 1623426, at *6 (Tex. App.—Corpus Christi
June 11, 2009, pet. ref’d) (mem. op., not designated for publication). Lack of
effective consent may be shown by circumstantial evidence. Wells v. State, 608
S.W.2d 200 (Tex. Crim. App. [Panel Op.] 1980). Although Brittany and/or Brian
gave Appellant consent to use the cell phone for a phone call, they did not give
Appellant consent to take the cell phone off the property. And while no one
expressly told Appellant any specific restrictions on his use of the cell phone, the
circumstances are such that a jury could have inferred that Appellant knew he was
only allowed to use the cell phone for a limited purpose. His behavior, most notably
his flight from the residence, is consistent with someone who knew they were not
authorized to take the property. See Mueshler, 178 S.W.3d at 156. Therefore, a jury
could have inferred that Appellant unlawfully appropriated Brian’s cell phone.


                                          6
      The jury also could have inferred that Appellant intended to deprive Brian of
his cell phone. See Northup, 2009 WL 1623426, at *6. Appellant’s intent to deprive
may be inferred from his words, acts, and conduct. Hart v. State, 89 S.W.3d 61, 64
(Tex. Crim. App. 2002) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.
App. 1999)). The fact that Appellant did not return the cell phone after he took it is
evidence from which a jury could have inferred Appellant’s intent to deprive. See
Rowland v. State, 744 S.W.2d 610, 613 (Tex. Crim. App. 1988). Moreover, even
though Appellant did not maintain possession of the cell phone, this does not mean
that he did not intend to deprive Brian of the cell phone. See Griffin v. State, 614
S.W.2d 155, 159 (Tex. Crim. App. 1981); Banks v. State, 471 S.W.2d 811, 812 (Tex.
Crim. App. 1971). The jury could have inferred that, when Appellant fled with
Brian’s cell phone, he intended to keep the cell phone permanently but accidentally
dropped it as he was breaking into the third home. See PENAL § 31.01(2) (defining
“deprive”). Indeed, the jury could have inferred that Appellant intended to pick the
cell phone back up but was interrupted by the arrival of the police. While the jury
could have also believed that Appellant inadvertently took the cell phone, the jury
did not believe that version of events, and we must defer to the jury’s resolution of
conflicting inferences. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979);
Zuniga, 551 S.W.3d at 733–34.
      Viewing the evidence in the light most favorable to the verdict, a rational jury
could have found beyond a reasonable doubt that Appellant committed theft.
Therefore, we hold that there was sufficient evidence to support Appellant’s
conviction for burglary of a habitation. We overrule Appellant’s first and second
issues.




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                                         `This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   KEITH STRETCHER
                                                                   JUSTICE


May 16, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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