Gonzales v. State , 931 S.W.2d 574 ( 1996 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Appellant was convicted of capital murder during the course of a burglary and was sentenced to life imprisonment. His conviction was affirmed. Gonzales v. State, 905 S.W.2d 4 (Tex.App.—Eastland 1995). We granted appellant’s petition for discretionary review to determine whether the Court of Appeals erred in holding the evidence was legally sufficient to establish that the murder of the deceased was committed in the course of committing a burglary.

Appellant was romantically involved with Krissi Caldwell, the teenage daughter of the deceased. The deceased and her husband disapproved of their daughter’s relationship with appellant and forbade Krissi to see appellant. Mr. Caldwell testified that Krissi was not permitted to invite appellant over to the Caldwells’ residence and that neither he nor the deceased ever consented to allow appellant to be in their home. As a result of these restrictions, Krissi’s relationship with her parents grew increasingly strained. This tension eventually culminated into Krissi’s plan to have appellant murder her parents.

One evening, after her parents had gone to sleep, Krissi let appellant into the house. Krissi gave appellant a 9mm automatic pistol she had taken from her father’s nightstand. Armed with the gun, appellant entered the Caldwells’ bedroom and fired five or six shots into both of the Caldwells. Mr. Caldwell survived the attack, but Mrs. Caldwell died from multiple gunshot wounds.

On appeal, appellant argued that the evidence was insufficient to establish he was in the course of committing burglary when he shot Mrs. Caldwell because his entry into the Caldwell home was made with Krissi’s consent. Therefore, appellant contended, at most he was guilty of the offense of murder rather than capital murder.

The Eleventh Court of Appeals disagreed, holding that

when an accused has the intent to commit a felony at the time he enters a habitation and the party giving the accused consent to enter the premises aids and assists the accused in the commission of the offense, the accused does not have the “effective consent” from the owner to enter the premises.

Id. at 6. The court noted that under the Penal Code, consent is not effective if “given by a person the actor knows is not legally authorized to act for the owner” and that appellant knew Krissi “was not legally authorized to give him consent to enter her parents’ home to kill them.” Id. at 7.

On a challenge to the sufficiency of the evidence, the reviewing court evaluates all the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When reviewing sufficiency, we measure the evidence against the charge given. Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984). The court’s charge authorized the jury to return a verdict of guilty if they unanimously found beyond a reasonable doubt that appellant did

intentionally cause the death of an individual, namely: Rosalyn Caldwell, by shooting the said Rosalyn Caldwell with a firearm, ... [while] in the course of committing or attempting to commit the offense of burglary of a habitation of Vernon Caldwell[.]

The trial judge instructed the jury that “a person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation with the intent to commit murder or commits murder or attempts to commit murder.”¹ The court also included in the charge the following definition

effective consent includes consent by a person legally authorized to act for the owner. Consent is not effective if given by a person the actor knows is not legally authorized to act for the owner.

TexJPenal Code § 1.07(a)(19)(B).

Appellant contends that the Court of Appeals erred in holding that an individual’s participation in an offense affects the nature of that individual’s consent thereby rendering it ineffective. Under the facts of this case, we agree with the Court of Appeals. Consent is not effective “if given by a person the actor knows is not legally authorized to act for the owner.” See Tex. Penal Code Ann. §§ 30.02(a)(1) and 1.07(a)(19). Appellant testified that he did not have Vernon or Rosalyn Caldwell’s permission to be in their home. He further testified that he knew Krissi’s parents disapproved of his relationship with their daughter and that the only time he went to the Caldwell residence was when Krissi’s parents were not home. Krissi and appellant conspired to murder Krissi’s parents and appellant’s entry into the Caldwell home was specifically to carry out their plan. Appellant could not reasonably have believed that Krissi was “legally authorized to act” for her parents in consenting to appellant’s entry for the purpose of killing them. As such, Krissi’s participation in the offense rendered her consent ineffective. Cf. Franklin v. Jackson, 847 S.W.2d 306, 309 (Tex.App.—El Paso 1992, writ denied) (noting illegal contract in which parties undertake to do an act forbidden by law is invalid agreement); Polland & Cook v. Lehmann, 832 S.W.2d 729, 743 (Tex.App.—Houston [1st Dist.] 1992, writ denied) (stating public policy dictates “ex dolo malo non oritur actio,” which translates: no court will lend aid to one who founds his cause of action upon immoral or illegal acts).

At least one other state court has shared this view. In State v. Upchurch, 332 N.C. 439, 421 S.E.2d 577 (1992), the North Carolina Supreme Court was faced with a fact situation similar to the one in the instant case. The defendant in Upchurch conspired with the victim’s stepson to enter his stepfather’s home and murder his stepfather and mother. The defendant contested his burglary conviction, claiming the agreement between him and the victim’s stepson furnished the consent needed to enter the stepfather’s home, and therefore, established a defense to burglary.² Id., 421 S.E.2d at 587. The court rejected the defendant’s argument, stating that “[w]hen [the stepson] began to plot his parents’ death, both he and the defendant could not reasonably have believed the stepson had any authority to give valid consent for entry for the purposes of their conspiracy.” Id. at 588; see Fotopoulos v. State, 608 So.2d 784, 793 (Fla.1992), cert. denied, 508 U.S. 924, 113 S.Ct. 2377, 124 L.Ed.2d 282 (1993) (holding son-in-law of owner and occupant of dwelling had no legal or moral authority to consent to entry by co-conspirator for purpose of murdering another occupant).

Viewing the evidence in the light most favorable to the verdict, any rational trier of fact could conclude that appellant did not have consent to enter Krissi’s parents’ home to kill them.

For the reasons stated herein, we agree with the Court of Appeals that the evidence was sufficient to support the jury’s finding that appellant committed the murder while “in the course of committing or attempting to commit the offense of burglary of a habitation of Vernon Caldwell.” The judgment of the Court of Appeals is affirmed.

CLINTON, J., concurs in the result.

1 . Appellant, for the first time on petition to this Court, argues that Krissi met the Texas Penal Code definition of owner. The jury, however, was not instructed on the Penal Code’s definition of “owner.” Moreover, appellant did not request an instruction on the term nor did he complain about the absence of such an instruction on direct appeal. Because a reviewing court measures the sufficiency of the evidence by the charge that was actually given, as the court of appeals has correctly done in this case, any debate on Krissi’s status as an "owner” is not before us. See Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984); see also Farrell v. State, 864 S.W.2d 501, 503 (Tex.Crim.App.1993) (stating this Court's review limited to decisions of the courts of appeals).

2 . Under the law relied upon in Upchurch, one of the requirements for a conviction of burglary in the first degree is that entry into the dwelling must be without the consent of anyone authorized to give consent. State v. Person, 298 N.C. 765, 259 S.E.2d 867, 868 (1979).