No. 04-07-00240-CR
Delivered and Filed: March 26, 2008. DO NOT PUBLISH
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2006-CR-5358, Honorable Pat Priest, Judge Presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
PHYLIS J. SPEEDLIN, Justice.
Darryl Anthony Bradshaw appeals his conviction for burglary of a habitation with intent to commit assault. In his sole issue, he alleges the evidence is factually insufficient to prove that he entered the habitation. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
Analysis
To obtain a conviction for burglary of a habitation with intent to commit assault, the State must establish that the defendant (1) entered a habitation, building, or portion of a building not open to the public, (2) without the effective consent of the owner, (3) with the intent to commit an assault. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). As used in section 30.02, the term "enter" means "to intrude: (1) any part of the body; or (2) any physical object connected with the body." Tex. Penal Code Ann. § 30.02(b)(1), (2) (Vernon 2003). The "entry" requirement is intended to protect the "interior or enclosed part of the described object, be it a house, a building or a vehicle." Griffin v. State, 815 S.W.2d 576, 579 (Tex.Crim.App. 1991) (per curiam) (noting that there must be a "breaking of the close" for there to be entry in the context of a burglary). On appeal, Bradshaw challenges the factual sufficiency of the evidence to prove that he "entered" the habitation of the complainant, William Curtis. In evaluating factual sufficiency, we review all of the evidence in a neutral light, and set aside the jury's 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. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We must remain mindful that the jury is the sole judge of the credibility of the witnesses, and may choose to believe all, some, or none of a witness's testimony. Cain, 958 S.W.2d at 407 n. 5. Under the first prong, we may not conclude the verdict is "clearly wrong" or "manifestly unjust" simply because, based on the quantum of evidence admitted, we would have rendered a different verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Similarly, under the second prong, we may not conclude that a conflict in the evidence requires a new trial simply because we disagree with the jury's resolution of the conflict — the great weight and preponderance of the evidence must contradict the jury's verdict before we may reverse on that basis. Id. It is well established that intrusion of any part of the body into the part of a house between the outside barrier and the interior is sufficient entry to constitute a burglary. See Ortega v. State, 626 S.W.2d 746, 747 (Tex.Crim.App. [Panel Op.] 1981). In Ortega, the court held that evidence showing the defendant entered into the part of the house between the screen door and the wooden door was sufficient to constitute "entry" into the habitation under the burglary statute. Id. (pry marks on wooden door located inside screen door with broken latch were sufficient to show defendant's entry into home). Entry is established when the plane of the opening of the house is broken, and may be accomplished by the defendant placing a foot inside a door frame, by cutting window or door screens, or by breaking a door lock or frame. See, e.g., Moore v. State, 54 S.W.3d 529, 539-40 (Tex.App.-Fort Worth 2001, pet. ref'd) (testimony of 11-year-old victim that defendant "entered" the house by placing his foot in the door with intent to engage in sexual contact with the victim, which was supported by testimony of responding officer, was factually sufficient to support conviction for burglary of a habitation with intent to commit indecency with a child); see also Williams v. State, 997 S.W.2d 415, 417 (Tex.App.-Beaumont 1999, no pet.) (evidence of broken padlock and broken door frame on garage established entry into building as required for burglary of building); Woods v. State, 814 S.W.2d 213, 215-16 (Tex.App.-Tyler 1991, no pet.) (homeowner's testimony that four window screens and door screen had been cut, along with police officers' testimony that defendant was apprehended at side of house with a knife in his hand, was sufficient evidence of defendant's "entry" into habitation to support burglary conviction). Here, the trial evidence on the issue of entry consisted of the testimony of Curtis and Bradshaw, who gave contrary accounts of the incident, and the testimony of Michelle Curtis, Officer Edwards, and Detective Marfin. William Curtis, the complainant, testified that on the night of the incident he heard his dogs barking and a knock at the front door; Curtis opened the interior wooden door and saw his former friend, Bradshaw, standing there "looking mad;" speaking from behind the exterior glass storm door, Curtis told Bradshaw to leave his property and they exchanged words, with Bradshaw making a threat to kill Michelle Curtis for testifying against him; Bradshaw then grabbed the storm door, pulled it open, and took two full steps inside the house and punched Curtis in the mouth before turning to leave. Curtis testified that Bradshaw's whole body was inside his home without permission. Michelle Curtis testified that she was not present in the front hallway, but heard the "commotion" and it sounded like it was coming from inside the house. Her husband yelled for her to "call 911," and said Bradshaw "had come in and punched him." Although he testified that he did not enter the Curtis residence, Bradshaw stated that he pulled open the outside storm door after Curtis opened the inside wood door; Curtis told him he was not supposed to be there and they exchanged curses. Bradshaw stated he then tried to slam the storm door before turning and walking away from the house; he stated that Curtis followed him outside, and he put up his hands to push Curtis away and must have accidentally struck Curtis. The responding police officer, Edwards, testified that Curtis told him, and his police report reflects, that Bradshaw opened the outside storm door and reached in and punched Curtis in the face. Finally, Detective Marfin, who spoke to Curtis two days after the incident, testified that he wrote up the offense as a burglary because his review of the facts showed it met the elements of burglary of a habitation with intent to commit assault, and entry was made by the defendant "pulling open the front glass door and stepping in[side]." Bradshaw points to a discrepancy between Officer Edwards' report and Detective Marfin's report on the issue of entry, arguing it makes the evidence factually insufficient to support the jury's finding. Specifically, Bradshaw cites the absence from Officer Edwards' report of a statement that he stepped inside the Curtis residence; however, the omission was explained by other evidence the jury could have chosen to believe — namely, Curtis's testimony that he only gave limited information to the responding officer because EMS was treating him for his injuries, and Officer Edwards' testimony that because the dispatch was for an assault he was not thinking in terms of "entry" for a burglary offense. Officer Edwards also testified that while his report did not state that Bradshaw took any steps inside the house, it did state that Bradshaw opened the outside door to the house and punched Curtis in the face; Edwards expressed his opinion that he should have written up the offense as a burglary of a habitation since the complainant was inside the house and the defendant opened the door and punched him, stating that the defendant's arm coming in through the doorway and into the house was an "entry" for purposes of burglary. Finally, both Officer Edwards and Detective Marfin testified it is not uncommon for a detective to change the grade of an offense after completing his investigation of the facts. While the jury could have so believed, it was not necessary for the jury to believe that Bradshaw stepped inside the house in order for them to find he "entered" the home by opening the exterior door and reaching in to punch Curtis; Bradshaw himself admitted opening the storm door, and thus breaking the plane of the home. See Ortega, 626 S.W.2d at 747 (entry between screen door and inside wooden door was sufficient for burglary conviction). Having reviewed all the evidence, we conclude that the evidence supporting the jury's finding of "entry" into the residence is factually sufficient, that is, it is not so weak that the jury's verdict is clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 417. Accordingly, we overrule Bradshaw's sole issue on appeal and affirm the trial court's judgment.