### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00410- CR

Juan Manu el Alacan, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 719 93, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found J uan Manuel Alaca n g uilty of burg lary o f a habitation, and the court a ssessed sente nce at ten y ear s in pr ison. Appellant contends that the evidenc e is insufficient to support his conviction beca use it does not show that he enter ed the hom e wi t h o u t t he owner ’s eff ective consent and does n o t show that he had the requisite mental s tate to assault any one when he ente red the home. We will affirm the c onviction.

BACK GR OUND Killeen Police Depa

rt m en t Of

fice r Br ett Boy

nton was dispatched to a home from which a wo m an had called 911 and reported that someone was try ing to brea

k in. The dispatcher repor ted that the woman then scream ed repe atedly and the phone disconnec ted. When Boy nton

arr ived, a woman ran toward him from the addre ss of the call scre aming and cry ing hy sterica lly that “[h] e’s g oing to kill him.” Boy nton drew his wea

pon and approa ched the house. He found appellant inside, ang ry and y elling. Boy nton said that appellant told the woman in Spanish to downplay thesituation. Boy nton t es t i fi ed that appellant was not holding a wea pon, but on the floor underne ath furniture there was a knife three to four fee t awa y from him and another eig ht to ten fee t awa y . Boy nton said that t h e k n ives appea red to have been remove d from a wood block in the kitchen. Boy nton sa id that in the master bedroom he found a window open and a door fra me to a bathroom broken. He testified that, in a ro o m on the back of the house, he found another open window

cover ed by minibli nds that wer e crumpled and d i s l o d ged from their normal position as if by

someone forc ing their way throug h the window. He also noted that a tire o n the woman’s car had b ee n p u n ct u re d, appar ently by a knife. Photos of the scene and the victim wer e admitted into evidence

. The rema inder of this summary of events is derive d from the testimony of the victim, Ruth Oc ana. Appellant and Oca na had a child toge ther and dated for three y ear s befor e separ ating in May 2013. Oca

na moved with the child into her mother’s house. When Oca na’s mother took the child to Puerto Rico in September or October 2013, Oca na and appellant resumed their rela tionship. Appellant fr equently

stay ed over

night a nd kept clothes a

nd persona l belong ings at the hous e. His prese nce was routine and he had her permission to come by without advanc e notice. Appellant

never theless sometimes called ahea d t o s ee if her sister was with her beca use her family did not like him very much. He would not come in if her sister was there

. Appellant s p en t t h e n i g ht of October 21, 2013 with Ocana

in her mother’ s house. On t h e afte rnoon of October 22, 2013, Oca na left work about 4 p.m. S h e h ad missed two calls from appellant beca use she could not answe r while at work. She called him back and either left a me ssag e or spoke with him and, at some point, told him that she had friends over. A male cowor

ker came t o h er house to talk about something, but they wer e interrupted when

2appellant called her from outside t h e h ouse. Oca na told appellant that she “couldn’ t talk to him rig ht now.” He told her that if she would not see him then, she would never see him ag ain. Oca na testified that she re plied, “Oka y .” Appe llant then s tarted bang ing on the l ocked front door for her to open it

. She told her c oworke r t o hide because she fea red appellant would be angr y to find her alone with another man even though appellant was living with his g irlfriend. She told the cowor ker that appellant wa s “a psy cho.” She c alled 911 and reporte d that someone wa s try ing to br eak into her house. Meanw hile, appellant cra wled thr o u gh a window that he had left unlocked the night befor e. Oc ana te stified that he sometimes came in throug h her be droom window.

Oca na scre amed when she saw a ppellant, and he knocked the phone from her hand and beg an ag g ressively

sear ching for he r visitor. When appellant found a door he could not ope n, he returne d to the kitchen and g ot two knives. Oca na tried to stop him, but he pushed her into a wall, gra b b ed h er arms hard enoug h to bruise her, and slapped her fac e causing pain and swelling

. He kicked open a bathroom door. Oca na ran outside and appellant pursued her with a knife, telling her to g et back inside or

he would hurt and kill her

. He slashed a tire on her car . She fea red appellant would try to kill her cowor ker, but the cowor

ker had fled throug h a window in the master bedroom. Oca na later said that she had “over exagg erated” her rea ction when the police arr ived. She did not mind appellant coming ov er , but ag ree d that she had told appellant not to come over that day , did not open the door when he never theless arr ived, and did not want him to come into the house at that time. Appellant did n ot pay rent, electricity , or water bil ls and did not have a key to the house.

3DISCUSSIO N Appellant contends that the evidenc e is insufficient to show that he enter ed the home without the owner ’s eff

ective consent or that he had the requisite mental state to commit assault when he enter ed the home.

I n revie wing the s ufficien cy of t he evidence to support a conviction, we determine whether a rational trier of fac t could have found that the essential elements of the crime wer e proven bey ond a rea sonable doubt. Brooks v. State , 323 S.W .3d 893, 895 (Tex. Crim. App. 2010);

see also Jack

son v. Virginia , 443 U.S. 307, 319 (1979). I n making this deter mination, we consider all evidenc e th at the trier of fac t was permitted to consider, reg ardle ss of whether it was rig htly

or wrong ly admitted. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007); Allen v. State , 249 S.W .3d 680, 688-89 (Tex. App.—Austin 2008, no pet.). We view this evidenc e in the light most favor able to the verdic t. Clayton , 235 S.W .3d at 778. The jury , as the trier of fac t, is the sole judge of the cre dibilit y of the witnesses and the weig ht to be g iven to their testimony

. Brooks , 323 S.W .3d at 899

. We presume that the jury resolved any confl i ct i n g i nfer ence s and issues of cre dibilit y in favor of the judg ment. Clayton , 235 S.W .3d at 778. A person commits the offe nse of burg lary as char g ed in this ca s e i f, “w i thout the eff ective consent o f t h e o wner , the person . . . enter s a building or habitation and commits or attempts to commit a felony , theft, or an assault.” Tex. Pe n al Code § 30.02. Consent is assent in fac t, whether express or appar ent. Id. § 1.07(a) (11). Effe ctive consent includes consent by a person leg ally authorized to act for the owner ; consent is not eff ective if induced by forc e, threa t, or fra ud. Id. § 1.07(a) (19). An owner is a person who has title, possession, or a g reater rig ht to possession of the prope rty

than another

. Id. § 1.07(a) (35).

4Appellant contends that his rec ent history of stay ing with Oca

na and the prese nce of his proper ty in the house show that he had her eff ective consent to enter the house. He notes that he had ente red throug h Oca

na’s bedroom window s ever al t imes with her pe rmission. He argues that she did not expressly

revoke her c onsent to him entering the home throug h the window. We conclude that the evidenc e is sufficie nt to support t h e j u ry ’s verdic t that appellant enter ed Oc an a’ s re s idence without her consent. The San Antonio court held that a

man who ordinarily had consent to enter his gi rl fr i en d ’s home committed burg lary by enter ing wit h o u t h er co nsent and assaulting her second boy friend. Rangel v. State , 179 S.W .3d 64, 69 (Tex. App.—San Antonio 2005, pet. ref ’d). The woman testified that, beca use her second boy friend was in her home, sh e d i d n o t wa n t Rang el t o enter at t hat t ime. Id

. at 66. She said that, althoug h R an gel had previously had permission to enter her home, he did not have permission t o en t er at the time of the incident. Id

. at 69. The court held that when he bang ed on the door and was denied entry , then enter ed throug h the window, the evidenc e was sufficie nt to show n o n -c o n sensual entry
. Id. The essential fac ts here are simil ar. Thoug h appellant had enter ed Ocana’ s home wit h h er permission previously , she testified that on the day of the incident she told him o v er t h e telephone that she did not have time to see him and later told him throug h the door that she was fine with never

seeing him ag ain. The f

ront door wa s locked and she did not open it in re sponse to his bang ing on it. She called 911 when he persisted and repor ted that someone was try ing to brea k into her house and scre amed when she saw he had enter ed the house. His response was to g rab her phone and disconnec t the call. This evidenc e is leg ally sufficie nt to support the jury ’s finding that appellant did not have Oca

na’s consent to enter the home and t h at ap pellant was awa re that whateve r permission to enter he previously enjoy ed wa s at least tempora rily suspended.

5Appellant conte nds that the evidenc e does not support a finding that he ente red the

house intending to commit a felony , theft, or an assault. That contention is direc ted to a conviction under Texas P enal Code section 30.02(a)(1)

. Appellant was convicted under a jury char g e drawn from a differ ent subsection. See Tex. Penal Code § 30.02(a) (3). The jury found that he intentionally

or knowing ly enter ed a habitation without the eff ective consent of the owner an d “a t t em p t ed to commit or committed an assault ag ainst Oca na.” A person commits an assault when he intentionally , knowing ly , or rec klessly cause s bodily injury to a nother. Id. § 22.01(a) (1). Bodily injury includes phy sical pain, illness, or any impairment of ph y s i cal condition. Id. § 1.07(a) (8). This definition includes relatively minor phy sical contac t if it is more than offe nsive touching , and direc t evidenc e that a victim suffe red pain is sufficie nt to show bodily injury

. Laster v. State , 275 S.W .3d 512, 524 (Tex. Crim. App. 2009). Police took photos of bruises and swelling o n Oca na’s body , and she testified that appellant infli ct ed t h o s e i njuries. Oca na testified that appellant hurt her when he slapped he r in the fac e, g rabbe d her, and shoved her into a wall. We c onclude that the e vidence is leg ally sufficie nt to support the conviction under Pena l Code section 30.02(a )(3)

. CONCLUSION We affir m the judgme nt.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med Filed: January

21, 2016 Do Not Publish 6