Tyrell Shawn White v. State ( 2005 )

Opinion filed December 1, 2005

Opinion filed December 1, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00270-CR

                                                    __________

                                 TYRELL SHAWN WHITE, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 6457-D

                                                                   O P I N I O N

The jury convicted Tyrell Shawn White of the offense of burglary of a habitation.  The trial court found the enhancement allegations to be true and assessed appellant=s punishment at confinement for 40 years.  We affirm. 

Appellant presents two issues for appellate review.  In the first issue, he complains of the trial court=s omission of an element of the offense from the application paragraph of the jury charge.  In the second issue, appellant argues that the evidence is legally and factually insufficient to show that he did not have effective consent to enter the house. 

A person commits the offense of burglary Aif, without the effective consent of the owner,@ a person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

TEX. PEN. CODE ANN. ' 30.02 (Vernon 2003).  Appellant was charged by indictment pursuant to Section 30.02(a)(1) with Aintentionally and knowingly enter[ing] a habitation without the effective consent of DAVID HICKS, the owner thereof, with intent to commit theft.@

To determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.  Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). In addressing appellant=s sufficiency challenges, we must measure the sufficiency of the evidence by the hypothetically correct jury charge for this case.  Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App.1997); see Curry v. State, 30 S.W.3d 394 (Tex.Cr.App.2000). 

The record shows that David Fitzgerald Hicks and his girlfriend, Christina Hale, returned home from work on a Saturday afternoon to find a car parked in their driveway. Hicks confronted the man sitting in the driver=s seat of the car.  About that time, appellant came walking out of the house with his hand on a gun that was sticking out of his pants.  Appellant seemed agitated and demanded to know where Clayborne Baity was.  Baity had previously leased the house from Hicks. Appellant said that Baity owed him money.  Hicks explained that he did not know where Baity was and that Baity owed him money too. Appellant pulled a sawed-off shotgun from the car and advanced toward the house again, but appellant apparently noticed that Hale was on the phone calling the police.  Appellant got in the car and left the premises.  Hicks pursued and got the license plate number of the car.

Hicks, Hale, and the officer who responded to the burglary call testified that the house had been ransacked inside.  The door to the house had been pried open -- as evidenced by the fresh pry marks. Hicks did not know appellant and had not given appellant permission to enter the house.  Hale testified that someone had gone through every room and every closet.  Some jewelry had been stolen, and other items belonging to Hicks and Hale had been put into laundry baskets and stacked near the door.

Appellant called Baity to testify regarding consent.  Baity testified that he had lived in Hicks=s house but had moved out just before Christmas. Baity also testified that, sometime in December, Baity gave appellant permission to enter the house to retrieve a microwave.  According to Baity, he had purchased a microwave from appellant on credit but could not pay for it, so he told appellant to go to the house and get it.

Hicks and Hale testified that Baity had moved out and vacated the premises by the end of November 2002.  Hicks and Hale moved back into the house at the end of November or the first of December, and Hicks changed the locks.  The burglary occurred on January 11, 2003.

We hold that the evidence is both legally and factually sufficient to show that appellant, without the effective consent of the owner, entered the house with the intent to commit theft.  Hicks, the owner, did not consent to the entry; and, at the time of the burglary, Baity was no longer authorized to give effective consent for appellant or anyone else to enter the house.  Moreover, lack of consent was shown by the fresh pry marks, the stolen items, the condition of the inside of the house, and appellant=s use of a gun.  Appellant=s second issue is overruled. 

In his first issue, appellant contends that the trial court failed to apply the law to the facts in the jury charge.  Appellant specifically complains of the omission of the Aeffective consent@ element from the application paragraph.  The application paragraph of the jury charge authorized the jury to find appellant guilty if it found that he Adid...intentionally and knowingly, with intent to commit theft, enter a habitation owned by DAVID HICKS, the owner thereof, with intent to commit theft.@ As conceded by the State, the statutory element that the entry must be Awithout the effective consent of the owner@ was inadvertently omitted from the application paragraph, although it was included in the indictment and elsewhere in the charge.

Because appellant did not object to the jury charge at trial, we must determine whether the error was so egregious that appellant was denied a fair and impartial trial.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985).  The actual degree of harm must be examined in light of the entire jury charge, the state of the evidence including the contested issues and the weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole.  Almanza v. State, supra. 

The record shows that other portions of the jury charge referenced Aeffective consent.@  The first paragraph of the jury charge provided:

Our law provides that a person commits the offense of burglary if, without the effective consent of the owner, he or she enters a habitation with intent to commit theft or any felony.

AEffective consent@ was thereafter defined twice in the charge. Furthermore, the indictment properly charged appellant with all elements of the offense, and the jury found appellant guilty Aas alleged in the indictment.@  The evidence at trial showed that appellant did not have Hicks=s consent to enter the house and that, even if Baity had previously consented, that consent was no longer authorized.  Moreover, the evidence was uncontroverted that the door had been pried open and that appellant was carrying a weapon while inside the house.  Furthermore, defense counsel agreed that consent was not a controverted issue in this case.  During closing argument, defense counsel stated:

Let me cut to the chase, ladies and gentlemen, and get right down to the heart of it.  He did not have permission to go in that house.  That=s agreed.  I=m not going to argue that.  But...they have to prove that he went in there with the intent to commit theft.  (Emphasis added)

Based upon our review of the record pursuant to Almanza, we hold that the error in the jury charge did not cause egregious harm and that appellant was not denied a fair and impartial trial.  Appellant=s first issue is overruled. 

The judgment of the trial court is affirmed. 

JIM R. WRIGHT

CHIEF JUSTICE

December 1, 2005 

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

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.