                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00119-CR

MICHELLE LOUISE CAMPBELL,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 66th District Court
                                Hill County, Texas
                               Trial Court No. 38,027


                          MEMORANDUM OPINION


       A jury found Appellant Michelle Campbell guilty of burglary of a building; the

charge contained a law of parties instruction and an instruction on the defense of mistake

of fact. The trial court sentenced her to two years in state jail, probated for five years.

Campbell appeals, asserting in two issues that the evidence is insufficient on her intent

to commit theft and that no rational juror could have found against her mistake-of-fact

defense that she had permission to enter the building and take property. We will affirm.

       The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly
        and independently to the guilt of the appellant, as long as the cumulative
        force of all the incriminating circumstances is sufficient to support the
        conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct. at

2793.     Furthermore, direct and circumstantial evidence are treated equally:

“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper, 214

S.W.3d at 13.

                Under the Jackson test, we permit juries to draw multiple reasonable
        inferences as long as each inference is supported by the evidence presented
        at trial. However, juries are not permitted to come to conclusions based on
        mere speculation or factually unsupported inferences or presumptions.
        ....

                [C]ourts of appeals should adhere to the Jackson standard and

Campbell v. State                                                                           Page 2
       determine whether the necessary inferences are reasonable based upon the
       combined and cumulative force of all the evidence when viewed in the light
       most favorable to the verdict.

Id. at 15-17. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

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

       A culpable mental state is invariably proved by circumstantial evidence. Giddens

v. State, 256 S.W.3d 426, 434 (Tex. App.—Waco 2008, pet. ref’d); see Dillon v. State, 574

S.W.2d 92, 94 (Tex. Crim. App. 1978). The jury may infer intent from any facts in evidence

that the jury determines prove the existence of an intent. Brown v. State, 122 S.W.3d 794,

800 (Tex. Crim. App. 2003). The issue on appeal is not one of theoretical possibility, but

whether, under the circumstantial evidence, it is reasonable to infer that the defendant

had the requisite culpable mental state. See Dillon, 574 S.W.2d at 95; see also Hooper, 214

S.W.3d at 14.

       A defendant has the burden of producing some evidence to support a defense.

Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Smith v. State, 352 S.W.3d 55,

62 (Tex. App.—Fort Worth 2011, no pet.). After the defendant has introduced some

evidence of a defense, the State bears the burden of persuasion to disprove it. Zuliani, 97

S.W.3d at 594; Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991); Smith, 352

S.W.3d at 62. This burden does not require the State to produce evidence disproving the

defense; it requires only that the State prove its case beyond a reasonable doubt. Zuliani,

97 S.W.3d at 594; Saxton, 804 S.W.2d at 913; Smith, 352 S.W.3d at 62. To determine the

legal sufficiency of the evidence to disprove the defense, the appellate court asks whether,

Campbell v. State                                                                     Page 3
after viewing all the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the charged offense beyond a

reasonable doubt and also could have found against the appellant on the defensive issue

beyond a reasonable doubt. Saxton, 804 S.W.2d at 914; Smith, 352 S.W.3d at 62.

              The mistake-of-fact defense is codified at Texas Penal Code Section
       8.02, which provides

           It is a defense to prosecution that the actor through mistake formed a
           reasonable belief about a matter of fact if his mistaken belief negated
           the kind of culpability required for commission of the offense.

       TEX. PENAL CODE ANN. § 8.02(a) (West 2011). A “reasonable belief” is “a
       belief that would be held by an ordinary and prudent man in the same
       circumstances as the actor.” Id. § 1.07(a)(42). The mistaken belief must
       “’negate[] the kind of culpability required for the commission of the
       offense.’” Ingram v. State, 261 S.W.3d 749, 753 (Tex. App.—Tyler 2008, no
       pet.). The phrase, “kind of culpability” means “culpable mental state.”
       Beggs v. State, 597 S.W.2d 375, 377-78 (Tex. Crim. App. 1980). When an
       accused presents evidence to raise the issue of mistaken belief as to a
       culpable mental element of the offense, he is entitled to a defensive
       instruction on mistake of fact. Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim.
       App. 1999). See Celis v. State, [416 S.W.3d 419, 430 (Tex. Crim. App. 2013)].

              Pursuant to section 30.02(a)(3), as charged in this indictment, a
       person commits burglary “if, without the effective consent of the owner, the
       person: [] enters a building or habitation and commits or attempts to
       commit … theft….” TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). A
       person commits theft “if he unlawfully appropriates property with intent
       to deprive the owner of property.” Id. § 31.03(a) (West Supp. 2012). The
       State must prove both entry of the habitation without permission of the
       owner and the commission of a theft or acts constituting an attempt to
       commit theft. TEX. PENAL CODE ANN. §§ 30.02(a)(3), 31.03(a) (West 2011 &
       Supp. 2012); see Jacob v. State, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995);
       Rangel v. State, 179 S.W.3d 64, 73 (Tex. App.—San Antonio 2005, pet. ref’d).
       In this situation, the gravamen of the offense of burglary is entry of a
       building or habitation without the effective consent of the owner
       accompanied by the further requisite acts or omissions under section
       30.02(a)(3). DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988).


Campbell v. State                                                                      Page 4
Reyes v. State, 422 S.W.3d 18, 28 (Tex. App.—Waco 2013, pet. ref’d).

       Jimmie Chatham testified that he lived at the home in question (120 Tobacco Road)

in 2011 with his daughter, her fiancé, and their children; they had been living there for

two years and he moved in to help them with expenses and lived there for almost a year.

He actually lived in an apartment that was connected to the house, which was owned by

the fiancé’s mother. A friend of Chatham’s daughter and fiancé moved in but caused a

bed-bug infestation in the home. As a result, when Chatham and his daughter’s family

were asked to move out, they left a lot of property (such as electronics, furniture, tattoo

equipment, and household items) behind and took it out a little at a time because they

had to de-bug everything. Chatham checked on the house every three days to make sure

everything was okay.

       On March 21, 2012, while at his new residence, Chatham saw a pickup truck drive

by, and it had speakers that were just like his that he had left at the 120 Tobacco Road

house. The truck was loaded with a lot of other things. Suspicious, he went to the house

to check on his property, and he found a car in the driveway and the door to his

apartment open. The day before he had checked on the house and it was locked and

looked normal. A no-trespassing sign was posted at the front of the house next to the

mailbox.

       Chatham saw that the doors were kicked in and then found four persons there

who were in the process of taking things out of the house. Chatham told them that he

was the owner and that they were stealing his “stuff.” Chatham further testified:

               And they pleaded with me and told me that there was another

Campbell v. State                                                                    Page 5
       person involved that took all the stuff, and if I’d let them go, they would let
       me know who it was and - - you know, if I let them go, they’d let me know
       who it was. And my deal was if … they were going to tell anybody who it
       was, it was going to be the authorities. And I actually told them to stay
       there. I lived a block away. I actually told them to stay there while I got
       my gun.

       Chatham identified Campbell as one of the four persons, and the other three were

Campbell’s two sons and a young girl who was the girlfriend of one of the sons.

Campbell’s children told Chatham that Campbell was their mother. It was the girl who

first told Chatham that she would tell him who had taken his property if he let them go,

and Campbell’s older son later said the same to Chatham. Chatham took the girl’s phone

so that they would not leave, retrieved his gun from his new residence and had his

“missus” call the police, and then returned to the house.

       When Chatham had first arrived, the three other than Campbell had come out;

Campbell was in one of the bedrooms and was reluctant to come out. He told her sons

to ask her to come out, and she pleaded with Chatham “not to call the law.” Eventually

she came out, but she was not holding any property when Chatham first saw her; he

added that she knew he was there before she came out. Chatham saw the two boys

holding property, and property had been placed outside. Much of his property was

missing, including his speakers.

       Chatham denied that the house was open to the public or that he had given

anyone, including the four persons, consent to go in the house and take things. Also, no

one else in his family had given anyone consent to go in the house and take things. After

the police had arrived, Campbell’s mother arrived and said that it was her fault because


Campbell v. State                                                                        Page 6
she had told Campbell that it was okay to go in the house.

       Shane Brassell, a Hill County Sheriff’s Deputy, testified that he was dispatched to

a burglary in progress and that the owner was holding the people at gunpoint. He went

to the Tobacco Road residence and found Chatham and the four individuals outside the

residence. Chatham pointed out to Brassell the items that several of the four were holding

when he had arrived.

       Campbell’s car was parked behind the residence and could not be seen from the

road. There was a fence around the front of the residence and a no-trespassing sign.

Brassell secured Chatham’s gun and then questioned the four. Brassell testified that

Campbell told her that her mother had given her permission to go in the house, but from

his investigation, Campbell’s mother had no authority over that house. Brassell did not

find any stolen property in Campbell’s car. He described Campbell as distraught.

       Michala Nichols, who was the girlfriend of one of Campbell’s sons, said that she

first went to the house the day before with Eloise Nunn, Campbell’s mother, to help her

take “stuff” out of the house. The door was wide open when they arrived. A few other

people were there also taking things. Nichols returned the next day with Campbell and

her two sons; she said that Nunn had told Campbell that she had permission to go in the

house and take things from a man named Larry. Nichols admitted that neither Chatham

nor the owner of the house had given them consent to go in the house.

       After about five minutes of being there on the second day, Chatham arrived. She

told Chatham that if he would not press charges, she would take him to where his

property was. At the time of trial, Nichols was on probation for burglarizing the house.

Campbell v. State                                                                   Page 7
       The defense called Nunn, who testified that when she driving on Tobacco Road,

near the house, she almost had a collision with a white pickup coming out of the

driveway. They both stopped, as things had fallen out of the pickup; the back of it was

full of “furniture and stuff.” The driver, who said his name was Larry, told Nunn that he

was moving out of the house and that there was still “stuff” in it that Nunn was “welcome

to.” Nunn said that she did not know Larry or ever discover who he was. Later that day

she went to the house with her grandson Thomas and his girlfriend (Nichols); the door

was open, but Nunn admitted that there was a no-trespassing sign. She also did not

know who owned the house or who had been renting it. Nunn said that she took only a

pair of glasses. Her grandson Thomas went to jail for the offense; he and Nichols took

responsibility for what they did.

       Nunn told Campbell that it was all right for her to go in the house. Nunn went

there the next day after being called about Chatham holding the four at gunpoint, and

she told him that Larry had told her they could go in the house and take things.

According to Nunn, Chatham’s reaction indicated to her that he knew who Larry was.

       In rebuttal, the State called Chatham, who testified that he did not know Larry or

give anyone named Larry permission to take property from the house, nor did he give

anyone such consent.

       Viewing all the evidence in the light most favorable to the verdict, we conclude

that a rational trier of fact could have found that Campbell committed the offense of

burglary of a building beyond a reasonable doubt. We overrule issue one.




Campbell v. State                                                                  Page 8
       By finding Campbell guilty, the jury rejected her mistake-of-fact defense.

Campbell’s car was found parked behind the house where it could not be seen from the

road, and Campbell was reluctant to come out when Chatham arrived. One of the parties

to the offense told Chatham that she would tell him where his property was if he would

let them go. There was a no-trespassing sign in front of the house, and a rational jury

could have disbelieved the testimony of Nunn, Campbell’s mother, that a total stranger

named Larry told her that she could go in the house and take whatever she wanted.

       In conclusion, a rational trier of fact could have disbelieved that Campbell acted

under a mistaken belief or could have concluded that the alleged belief was reasonable.

We overrule issue two. The trial court’s judgment is affirmed.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 23, 2015
Do not publish
[CR25]




Campbell v. State                                                                  Page 9
