No. 10-03-00238-CR
Opinion delivered and filed November 10, 2004. DO NOT PUBLISH.
Appeal from the 196th District Court, Hunt County, Texas, Trial Court # 21,427. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
BILL VANCE, Justice.
Appellant, Rodney Hamilton, was charged with burglary of a habitation with intent to commit theft. TEX. PEN. CODE ANN. § 30.02 (Vernon 2003). The indictment alleged six prior felony convictions. The jury returned a guilty verdict and assessed punishment at 88 years in prison. Hamilton brings two issues on appeal: (1) the evidence was legally and factually insufficient to support a finding that the structure was a habitation; and (2) the evidence was legally and factually insufficient to support a finding that Javier Carrillo was the owner of the alleged habitation. We will overrule the issues and affirm the judgment.
BACKGROUND
On July 31, 2002, two officers from the Greenville Police Department responded to a call reporting an intrusion alarm. The two officers split up, one covering the front of the house and the other going to the rear. When Officer Gray approached the rear door of the house, he found that the screen had been cut, the windowpane was missing, and the door was standing open. He testified that he believed these were signs of forced entry. He drew his weapon, entered the house, and announced "police officer." He testified that he heard someone running toward him, and saw a black man coming from the northeast portion of the house carrying a black bag. Gray identified Hamilton as the man with the bag. Habitation
Hamilton argues that the evidence was legally and factually insufficient to support a finding that the structure he entered was a "habitation." We review legal sufficiency by considering all of the evidence in the light most favorable to the verdict to 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, 318-19, 199 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). Burglary can be a state jail felony or a second degree felony, depending on whether the premises are a building or a habitation. TEX. PEN. CODE ANN. § 30.02. "Building" means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. TEX. PEN. CODE ANN. § 30.01 (Vernon 2003). "Habitation" means a structure or vehicle that is adapted for the overnight accommodation of persons. Id. The structure must at the time of the alleged offense have been actually adapted for the overnight accommodation of persons or at least at some prior time have been used for the overnight accommodation of persons and still be adapted for the overnight accommodation of persons. Blankenship v. State, 780 S.W.2d 198, 209 (Tex.Crim.App. 1989) (op. on reh'g). What makes a structure "suitable" or "not suitable" for overnight accommodation is a complex, subjective factual question fit for a jury's determination. Id. Relevant factors which may be considered are: whether someone was using the structure as a residence at the time of the offense; whether the structure or vehicle contained bedding, furniture, utilities, or other belongings common to a residential structure; and whether the structure is of such a character that it was probably intended to accommodate persons overnight. Id. The evidence indicates the house had recently been used for the overnight accommodation of persons prior to the incident. Javier Carrillo testified that he and Maria Garcia, the owner listed on the deed to the house, had lived in the house for nine years and were relocating to Garland in the month that the alleged burglary occurred. Carrillo testified that he had moved out sometime prior to the incident and was not living there, but that he still had some of his belongings in the house. The State introduced several photos showing different rooms of the house. The photos show an air conditioner, a lamp, a stove, an ironing board, a telephone and "alarm box" on the floor, and what appears to be a plastic chair. Other than these items, the house appears to be largely empty. The jury could have inferred that the house had electricity from Officer Gray's testimony that the dispatcher told him that the alarm company had called reporting an alarm had sounded at that address. Although the house was largely empty, several household items and appliances appear in the photographs. The house is clearly an enclosed structure and is intended for human habitation. Considering all of the evidence in the light most favorable to the verdict, we cannot say that the jury was irrational in finding beyond a reasonable doubt that the house was a habitation. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding beyond a reasonable doubt that the house was a habitation. Zuniga, 2004 WL 840786, at *7. We overrule this issue. Owner
Hamilton argues that the evidence presented at trial was legally and factually insufficient to prove that Carrillo was the owner of the home burglarized. The Texas Penal Code defines "owner" as a person who has title to the property, possession of the property, or a greater right of possession of the property than the actor. Tex. Pen. Code Ann. § 1.07(35)(A) (Vernon Supp. 2004-05). Any person with a greater right to the actual care, custody or management of a structure than the defendant may be alleged as the owner under the burglary statute. Alexander v. State, 753 S.W.2d 390, 392 (Tex.Crim.App. 1988). Javier Carrillo testified that he and the titled owner, Maria Garcia, hold themselves out as husband and wife and had lived in the house for nine years prior to the burglary. Carrillo testified that Garcia owned the house at the time of the burglary and still owned it at the time of trial. Considering all of the evidence in the light most favorable to the verdict, the jury could rationally have found beyond a reasonable doubt that Carrillo was the "owner" of the home burglarized. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Considering all of the evidence in a neutral light, we cannot say that the jury was not rationally justified in finding beyond a reasonable doubt that Carrillo was the "owner" of the home. Zuniga, 2004 WL 840786, at *7. We overrule this issue. CONCLUSION
Having overruled the issues, we affirm the judgment.