Opinion
NO. 01-06-01051-CR
Opinion issued February 14, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1056865.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
Appellant, Stephen Charles Mackay, appeals from a judgment sentencing him to 10 years in prison for burglary of a habitation with intent to commit aggravated assault. Appellant pleaded not guilty; the jury found him guilty and determined his sentence. In two issues, appellant challenges the legal and factual sufficiency of the evidence by asserting that there is no evidence or insufficient evidence to show that he entered the house without consent because he had permission to enter the house by the owner of the house. We affirm.
Background
After he separated from his wife, complainant, James Koehler, moved into Tom Slattery's house bringing clothing, property and a dog. Koehler and Slattery were longtime friends. Slattery gave Koehler a key to the house and permission to temporarily live there. On February 7, 2006, after he had been in the house for about two weeks, Koehler received a threatening call from appellant. Later that day, appellant appeared at the house banging on the front door, while holding a firearm and threatening to kill Koehler. Appellant went to the back door, where he shot into the house, causing Koehler to run out the front door. Koehler also saw appellant break a window of the house. Koehler testified that appellant had no permission to be in the house, nor did he have a key to the house. Koehler described himself as the person who "had run of the house." Deputy Whitaker responded to a 911 call to the house, where he found broken glass near the front door. As he entered the house, he saw appellant standing in the hallway, claiming he had dropped the gun. After he handcuffed appellant, the deputy found a handgun in the hallway near where appellant had been. The deputy noticed bullet fragments throughout the house. Deputy Whitaker saw Koehler running down the street reporting that someone shot at him. Deputy Whitaker determined that Koehler lived at the house based on Koehler's statement that he was "house-sitting" for a couple of days. Deputy Whitaker never spoke to Slattery, who could not be located. In his defense at trial, appellant called Slattery, the owner of the house. Slattery testified that he allowed Koehler to stay at his house for three to four days, that Koehler was supposed to be gone on February 6, and that Koehler did not have permission to be at the house on February 7, the day of the shooting. Slattery also said that appellant had consent to be in the house on the day of the shooting because he was allowed to enter the house at any time. During cross-examination, Slattery acknowledged that on the day of the shooting, Koehler still had a key to the house. Slattery also acknowledged that he knew Koehler was going to be at the house on the day of the shooting to get the dog and other possessions. Although he "assumed [Koehler] was going to be out" by Monday, Slattery testified that he was "[n]ot for sure" since Koehler did not have a place to stay. Slattery said that appellant did not have a key and did not have consent at any time to enter the house by breaking open the door. Slattery testified that he did not know appellant was coming to the house on the day of the shooting. In his testimony, appellant acknowledged that he did not obtain consent from Slattery to be in the house that day, but he explained that he had running consent to be in the house. Appellant said that Slattery would lock the door when he did not want him to enter the house. Although he claimed he found the windows broken, appellant acknowledged that the screen door was locked. Appellant maintained he entered the house through a door that was unlocked and partially opened.Sufficiency of the Evidence
In two issues, appellant contends that the evidence is legally and factually insufficient to establish his conviction for burglary of a habitation because the evidence is insufficient to show that he did not have the owner's consent to enter the house. Appellant points to evidence that Slattery, the owner of the house, allowed Koehler to stay at the house from February 3 to 6, but not on February 7, the day of the shooting. Slattery also said that appellant had permission to be at the house on the day of the assault and that Koehler did not. Appellant contends that Koehler did not have a greater right to possession of the habitation than he, on the day of the assault, since Koehler had no permission to be in the house that day and appellant had permission to be there.A. Law Concerning Proof of Consent by Owner of Property
To establish that appellant committed burglary of a habitation, the State must prove that appellant (1) entered a habitation, (2) without the effective consent of the owner, and (3) with intent to commit a felony or theft. See TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2003). Appellant challenges only the second element. The Texas Penal Code defines "owner" as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Id. § 1.07(a)(35) (Vernon Supp. 2007). "Possession" means actual care, custody, control, or management. Id. § 1.07(a)(39) (Vernon 2003). Thus, any person who has a greater right to the actual care, custody, control, or management of the property than appellant can be classified as "owner." Alexander v. State, 753 S.W.2d 390, 392 (Tex.Crim.App. 1988). It is undisputed that Slattery was the person with title to the house. The indictment and the jury charge both alleged that Koehler was the owner because he had a greater right of possession to the house than appellant.B. Legal Sufficiency
In a legal-sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). A jury is entitled to accept one version of the facts and reject another, or to reject any part of a witness's testimony. Id. Viewing the evidence in a light most favorable to the jury's verdict, the record shows that Slattery gave Koehler permission to stay at the house temporarily. On the day of the assault, Koehler had a key to the house, his possessions and dog were there, and he alone had run of the house while Slattery was out of town. However, although he did state that appellant had permission to enter the house, Slattery also testified that appellant did not have permission to enter by breaking into the property and that appellant did not have a key to the house. We hold that, viewed in the light most favorable to the verdict, the evidence is legally sufficient to show that Koehler had a greater right to possession of the house than did appellant. See Robertson v. State, 21 S.W.3d 554, 558 (Tex.App.-Waco 2000, pet. ref'd) (holding evidence was legally sufficient to support burglary conviction when appellant had right of possession, but right was lesser than complainant's) (citing Mack v. State, 928 S.W.2d 219, 223 (Tex.App.-Austin 1996, pet. ref'd)). We overrule appellant's first issue.C. Factual Sufficiency
When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The fact finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. Viewing the evidence neutrally, Slattery and appellant testified that appellant could enter the house whenever he wished, including on the day of the assault. However, the jury could have determined that that testimony lacked credibility since appellant did not have a key and did not have permission to enter when the door was locked or consent to enter the house forcibly. See id. Slattery also testified that Koehler was supposed to have left the house by the day of the shooting and had no right to be there. However, the jury could have determined that this evidence lacked credibility because Koehler still had a key to the house and also had his possessions and dog at the house. Also, Slattery qualified his claim that Koehler had no consent to be at the house when he stated that he was not sure whether Koehler would be gone and that he assumed Koehler would not be there. Koehler, however, testified that he had "run" of the house while Slattery was out of town and that he had consent to be there. We must defer to the jury's determination that Koehler had a greater right to possession of the house than appellant. See id. We conclude that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We hold that the evidence is factually sufficient. See Mack, 928 S.W.2d at 223 (holding evidence was factually sufficient to support burglary conviction when appellant had right of possession, but right was lesser than complainant's). We overrule appellant's second issue.Conclusion
We affirm the judgment of the trial court.