No. 05-05-00273-CR
Opinion Filed January 23, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80623-04. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice RICHTER.
Richard Gordon Gilbreath, Jr. appeals his conviction for burglary of a habitation, asserting in a sole issue that the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
Gilbreath was charged with burglarizing the house of Beverly Modesto. At trial, which was before the bench, Modesto testified she was in the process of moving and was not at home when the burglary occurred. She had just a few items at the house and only a set of fireplace tools had been taken. Those tools were subsequently found at a nearby house which Gilbreath also broke into and where he was arrested. Testifying in his defense and as his sole witness, Gilbreath did not deny he entered Modesto's house and took the fireplace tools without her consent. He maintained, however, that he entered the house for protection because he was being followed by at least two individuals, one of whom was carrying a gun, and he needed to use a telephone to call the police. Believing these individuals had entered the house behind him, Gilbreath took the fireplace tools and used them to "bust through the back door." Gilbreath then ran to the second house carrying the tools for protection. Once inside that house, he located a telephone and called the police. Gilbreath testified he never had any intent to steal and admitted he was "high on cocaine" at the time. Discussion
In arguing the evidence is legally and factually insufficient to support the conviction, Gilbreath relies on his testimony that he never had any intent to steal. Gilbreath also relies on his testimony that he entered Modesto's house and took the fireplace tools with him for protection. Gilbreath maintains this testimony supported a defense of justification and the trial judge erred by finding him guilty and implicitly rejecting such defense. Gilbreath further maintains that the only offense he "could have possibly been found guilty of, based on the evidence presented at trial, was criminal trespass." We reject his contentions. We apply well-known standards in reviewing challenges to the legal and factual sufficiency of the evidence. Because Gilbreath raised a defensive issue, we will find the evidence to be legally sufficient only if we determine, based on a review of the evidence in the light most favorable to the verdict, that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and also found against the defensive issue beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). We will find the evidence to be factually sufficient if, after viewing the evidence in a neutral light, we can conclude that the State's evidence taken alone is not too weak to support the finding of guilt beyond a reasonable doubt and the evidence supporting the defense is not so strong that the rejection of the claim does not meet the beyond-the-reasonable doubt standard. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). In conducting these reviews, we bear in mind that the fact finder may draw reasonable inferences, is the sole judge of the weight of the evidence and credibility of the witnesses, and may accept or reject any or all of the evidence produced by the parties. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991); Johnson v. State, 959 S.W.2d 284, 287 (Tex.App.-Dallas 1997, pet. ref'd). Based on the indictment in this case, to obtain a conviction, the State had to prove Gilbreath entered Modesto's house without her consent and (1) intended to commit a theft, (2) committed a theft, or (3) attempted to commit a theft. See Tex. Pen. Code Ann. § 30.02(a)(1),(3) (Vernon 2003). Theft is the appropriation of property without the owner's effective consent and with the intent to deprive the owner of that property. Id. § 31.03(a),(b)(1) (Vernon Supp. 2005). To establish the defense of necessity, Gilbreath had to produce evidence establishing he reasonably believed his conduct was immediately necessary to avoid imminent harm. See id. § 9.22(1) (Vernon 2003); Pennington v. State, 54 S.W.3d 852, 857 (Tex.App.-Fort Worth 2001, pet. ref'd). Upon production of this evidence, the State bore the burden of persuasion to disprove the defense by establishing its case beyond a reasonable doubt. See Saxton, 804 S.W.2d at 913. Here, the evidence showed Gilbreath entered the house and took the fireplace tools for his use without Modesto's consent. From this, the judge could have found beyond a reasonable doubt that Gilbreath committed burglary and did not simply trespass. See Tex. Pen. Code Ann. § 30.02(a)(3). Although Gilbreath may have testified he did not enter Modesto's house with the intent to steal, no intent was necessary as the State could establish his guilt by simply showing he took the fireplace tools without Modesto's consent. Id.; § 31.03(a),(b)(1). Moreover, although Gilbreath may have believed the entry was necessary to protect himself from the individuals who were following him, the judge, as the trier of fact, was free to disbelieve that testimony. See Saxton, 804 S.W.2d at 914 (fact finder is free to accept or reject defensive evidence). Viewing the evidence under the appropriate standard, we conclude the evidence was both legally and factually sufficient to support the conviction. We resolve Gilbreath's sole issue against him. We affirm the trial court's judgment.