Opinion
No. 05-05-00140-CR
Opinion Filed November 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-48147-KU. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
Appellant appeals his conviction for burglary of a habitation. After finding appellant guilty, the jury assessed punishment at thirty years' confinement. In four points of error, appellant generally contends (1) the trial court erred in refusing to charge the jury on the lesser included offense of criminal trespass, (2) the evidence is factually insufficient to support his burglary conviction, and (3) his right to a unanimous jury verdict was violated. For the following reasons, we affirm the trial court's judgment. On January 11, 2004, at about 10:30 p.m., complainant and her children returned home to find their front door frame had been broken. Complainant's adult son, Michael, entered the house first. As he did so, he saw an intruder, coming from one the back rooms. (At trial, Michael identified the intruder as appellant.) Appellant seemed startled to see Michael. He told Michael he was "sick" and asked if he could just leave. Michael tried to prevent appellant from leaving and a struggle ensued. Some neighbors, apparently hearing the commotion, came to assist. The men dragged appellant outside and held him until police arrived. Police arrested appellant and found a pair of complainant's earrings in the front pocket of his pants. The grand jury indicted appellant for burglary of a habitation. Specifically, the indictment alleged appellant committed the offense by (1) by entering complainant's habitation without her consent "with the intent to commit theft" and (2) by entering complainant's habitation without her consent and "committing and attempting to commit theft." The jury charge authorized a guilty verdict if the jury found appellant committed the offense by either method. The jury found appellant guilty as charged. In the first issue, appellant contends the trial court erred in refusing to give his requested instruction on the lesser-included offense of criminal trespass. We use a two-part test to determine whether a lesser-included offense must be submitted to a jury. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993). First, the lesser offense must be included within the proof necessary to establish the offense charged. Campbell, 149 S.W.3d at 152. Second, there must be some evidence that would permit a jury to rationally find that if appellant is guilty, he is guilty only of the lesser offense. Rousseau, 855 S.W.2d at 672-73; Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). Regarding the second element, it is not sufficient that the jury might have disbelieved evidence pertaining to the greater offense. Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003); Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). Rather, there must be some evidence in the record "directly germane" to the lesser-included offense. Hampton, 109 S.W.3d at 441; Skinner, 956 S.W.2d at 543. In this issue, appellant asserts the trial court should have charged on the lesser-included offense of trespass. Appellant does not direct this Court to any evidence in the record to show he was guilty only of criminal trespass. Specifically, he directs us to no evidence showing he did not intend to commit theft when he entered the residence or that he did not actually commit or attempt to commit theft after he entered. Instead, appellant merely criticizes the State's evidence to show burglary. As noted above, to raise a lesser offense, there must be some evidence directly germane to the lesser offense. After reviewing the entire record, we conclude there is no evidence to show appellant was guilty only of criminal trespass. We resolve the first issue against appellant. In the second issue, appellant contends the evidence is factually insufficient to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. Here, appellant asserts the evidence is factually insufficient to show he committed burglary because there is no evidence he entered the house with the intent to commit theft or that he entered the building and then committed theft. Initially, the jury could infer appellant had the intent to commit theft at the time he entered the residence from evidence that he broke into the residence, entered, and took complainant's earrings. See LaPoint v. State, 750 S.W.2d 180, 181 (Tex.Crim.App. 1986). Moreover, we disagree with appellant's argument that he did not actually commit theft because he was prevented from leaving the house with the earrings. See Barnes v. State, 824 S.W.2d 560, 562-63 (Tex.Crim.App. 1991) (theft complete when defendant exercises control over property), overruled on other grounds by Proctor v. State, 967 S.W.2d 840 (Tex.Crim.App. 1998). Regardless, the jury could have found appellant guilty because he entered the house and attempted to commit theft. After reviewing the record in a neutral light, we cannot conclude (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. We resolve the second issue against appellant. In the third issue, appellant contends the trial court erred when the jury was allowed to return a non-unanimous verdict of guilty in violation of the Texas Constitution. According to appellant, the charge deprived him of a unanimous jury verdict because it did not require the jurors to agree on whether (1) he entered with the intent to commit theft or (2) entered and then committed or attempted to commit theft. Alternative pleading of the differing methods of committing one offense may be charged in the disjunctive. Kitchens, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). However, when the State charges different criminal acts, the jury must unanimously agree the defendant committed the same criminal act. Francis v. State, 36 S.W.3d 121, 124-25 (Tex.Crim.App. 2000). The issue in this case is then whether the charge alleged different methods of committing a single criminal act or whether it alleged different criminal acts. See Ngo v. State, No. PD-0504-04, 2005 WL 600353 at *3 (Tex.Crim.App. March 16, 2005). While the court of criminal appeals has stated that the Texas Constitution's unanimity requirement is not "identical" to that under federal law, the Court generally borrows from federal precedent in deciding cases under the Texas Constitution. See Ngo, 2005 WL 600353 at * 4 n. 24. A federal criminal jury must unanimously agree on all elements of the offense, but need not agree on the means why which the elements are established. Richardson v. United States, 526 U.S. 813, 817 (1999). Thus, we consider whether the statutory language at issue is itself an element of the offense or a means of satisfying an element. See Richardson, 526 U.S. at 817. Here, the question is whether entry "with intent" to commit theft or entry and "committing or attempting to commit theft" are different elements or a means of satisfying a single element. The "gravamen" of the offense of burglary is the entry of a building or habitation without the effective consent of the owner accompanied by either the intent to commit a felony or theft or the commission or attempted commission of theft. DeVaughn v. State, 749 S.W.2d 62, 65 (Tex.Crim.App. 1988). The attempted or completed theft or felony supplants the intent to commit a felony upon entry. Id. at 66. In essence, the attempted or completed theft satisfies the mens rea element required for burglary. In Schad, the United States Supreme Court, concluded that premeditated murder and felony murder were two manner and means of committing a single offense. Schad v. Arizona, 501 U.S. 624, 643-45 (1991). In doing so, it explained that "premeditation" and "murder in the course of committing a felony" were alternative means of satisfying the required mental state. Id. We likewise conclude that entering with the intent to commit theft and entering and committing or attempting to commit theft are essentially "mere means of satisfying a single mens rea element." Cf. id. Consequently, the jury charge alleged different methods of committing one offense and was not erroneous. Thus, appellant's right to a unanimous verdict was not violated. We resolve the third issue against appellant. In the fourth issue, appellant contends the jury charge violated the due process clause of the United States Constitution because it allowed the jury to return a non-unanimous verdict. Appellant does not provide any substantive legal argument or analysis under this point. We conclude this issue is inadequately briefed and presents nothing additional to review. See Tex.R.App.P. 38.1(h); Patterson, 138 S.W.3d 643, 649 (Tex.App.-Dallas 2004, no pet.). We resolve the fourth issue against appellant.