      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00353-CR



                                  Bradley Morales, Appellant

                                                 v.

                                  The State of Texas, Appellee


                   FROM THE COUNTY COURT OF MILAM COUNTY
            NO. CR29930, HONORABLE FRANK SUMMERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Bradley Morales was convicted of criminal mischief for throwing a brick through

Ruby Lattimore’s car windshield. See Tex. Penal Code Ann. § 28.03(a)(1) (West Supp. 2010).

Punishment was assessed at thirty days’ confinement in Milam County jail plus court costs, fees, and

restitution. On appeal, Morales argues that the evidence was legally and factually insufficient to

support his conviction because there was no evidence that he lacked Lattimore’s consent to damage

her property. We affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Morales stipulates that he threw a brick through the windshield of Ruby Lattimore’s

car while it was parked outside the Central Texas Hospital, causing approximately $300 in damage.

Lattimore was inside the building at the time. The State charged Morales with criminal mischief,
see id., and the jury found him guilty. Morales appeals, arguing that the evidence was legally and

factually insufficient to support his conviction.


                                    STANDARD OF REVIEW

                In reviewing a legal sufficiency challenge, we view the evidence in the light most

favorable to the verdict and determine whether a rational trier of fact could have found the essential

elements of a crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim.

App. 2005). The jury, as the trier of fact, “is the sole judge of the credibility of the witnesses and of

the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The

jury may choose to believe or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d

611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable inferences from basic facts

to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). When faced with

conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.

Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

                In evaluating the factual sufficiency1 of the evidence, we view all the evidence in a

neutral light and will set aside the verdict only if we are able to say, with some objective basis in the

record, that the conviction is clearly wrong or manifestly unjust because the great weight and

preponderance of the evidence contradicts the jury’s verdict. Watson v. State, 204 S.W.3d 404,




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         Subsequent to this appeal being filed, the court of criminal appeals determined that legal
sufficiency is the only standard by which appellate courts may ascertain the sufficiency of the
evidence supporting a conviction. Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS
1240 at *57 (Tex. Crim. App. Oct. 6, 2010). However, because the deadline for filing a motion for
rehearing in Brooks has not passed, we will address Morales’s factual sufficiency issue.

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414-17 (Tex. Crim. App. 2006). We cannot conclude that a conflict in the evidence justifies a new

trial simply because we disagree with the jury’s resolution of that conflict, and we do not intrude

upon the fact-finder’s role as the sole judge of the weight and credibility of witness testimony. See

id. at 417; Fuentes, 991 S.W.2d at 271. The fact-finder may choose to believe all, some, or none of

the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991);

Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2008, no pet.).


                                          DISCUSSION

               Morales argues that the evidence was legally and factually insufficient to support his

conviction because there was no evidence that he lacked Lattimore’s consent to damage her

windshield. See Tex. Penal Code § 28.03(a) (lack of effective consent is element of offense of

criminal mischief); id. § 2.01 (West 2003) (State must prove every element of offense beyond

reasonable doubt). He notes that Lattimore never testified that she did not consent to him damaging

her windshield. The State concedes this point, but it argues that Lattimore’s lack of consent was

established through circumstantial evidence.

               We agree with the State. Lack of effective consent can, like any other element of a

crime, be established circumstantially. Hathorn v. State, 848 S.W.2d 101, 107 (Tex. Crim. App.

1992); Prescott v. State, 610 S.W.2d 760, 763 (Tex. Crim. App. 1981). Although Lattimore did not

testify that she did not consent to Morales damaging her windshield, she did testify that she had

never met Morales and did not know him at the time he damaged her windshield. See Fearance

v. State, 771 S.W.2d 486, 511 (Tex. Crim. App. 1988) (fact that victim did not know perpetrator was

sufficient to establish lack of effective consent). She also testified that she was upset when she

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learned that her windshield had been damaged. The jury was free to believe this testimony and to

infer from it that Lattimore had not consented to Morales damaging her windshield. Sharp,

707 S.W.2d at 614; Clewis, 922 S.W.2d at 133. Morales cites no evidence suggesting that Lattimore

actually did consent to Morales damaging her windshield. We find the evidence to be legally and

factually sufficient to sustain the conviction, and we affirm the trial court’s judgment.




                                              __________________________________________

                                              David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: October 27, 2010

Do Not Publish




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