1 NO. 07-08-00130-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 5, 2010

VICTORIA ANN GRIEGO, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 64TH DISTRICT COURT OF HALE COUNTY; NO. A17397-0710; HONORABLE ROBER T W. KINKAID JR., JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION
Appellant Victoria Ann Gr iego appeals from her conviction for the offense of burglary of a habitatio n and the resulting sentence of twenty years = imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Through one issue, appellant contends the evidence was legally and factually insufficient to support her conviction. We find the evidence sufficient and affirm the conviction.2 Background
Appellant was indicted for A intentionally or knowingl y enter[ing] a habitation, without the effective consent of [complainant], and attempt[ing] to commit and commit[ing] theft of property, to -wit: a wallet containing cash, owned by [complainant]. @ 1 On her plea of not guilty, the case proceeded to jury trial.
Evidence showed that on the morning of Oc tober 5, 2007, appel lant came to the complainant = s apartment in Plainview and asked for money to pay for gas. The complainant, a man ninety-three years old, gave her five dollars. Several hours later, appellant returned to the complainant = s apartment and knocked on the door, apparently wanting to repay the money she borro wed earlier. Inside the apartment, the complainant began to remove hi s wallet, appellant grabbed it, took $240 cash from the wallet, and left.
Through several witnesses, appellant pres ented both mistaken identity and alibi defenses in which she argued she was not t he person who committed the offense. She contended that on October 5, s he was in Lubbock with her family while her father was having surgery.

1 Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 1999).3 Analysis
Applicable Law
In a criminal case, the State has the burden to prove each element of an offense beyond a reasonable doubt. Johnson v. State, 673 S.W.2d 190, 194 (Tex.Crim.App. 1984). On appeal, appellant chal lenges the legal and factual su fficiency of the evidence to prove one element: the lack of effectiv e consent of the comp lainant to enter his habitation. Absent proof that appellant entered without t he effective consent of the owner, her burglary convic tion cannot stand. See Eppinger v. State, 800 S.W.2d 652, 653 (Tex.App.

B Austin 1990, pet. ref = d) (reversing conviction fo r that reason). Lack of consent may be shown circumstantially. Prescott v. State, 610 S.W.2d 760 (Tex.Crim.App. 1981); Taylor v. State, 508 S.W.2d 393, 397 (Tex.Crim.App. 1974); Salazar v. State, 712 S.W.2d 643 (Tex.App.

B Corpus Christi 1986, no pet.). Consent means assent in fact, whether express or apparent. Tex. Penal Code Ann. ' 1.07(11) (Vernon 2008). Testim ony need not contain A magic words @ to establish lack of consent. Prescott, 610 S.W.2d at 763.
In reviewing issues of legal sufficiency, an appellate court view s the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If,4 given all of the evidence, a rational jury would necessarily entertain a reasonable doubt of the defendant = s guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975,113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). Circumstantial evidence is as probative as direct ev idence in establishing guilt, and circumstantial evidence alone can be sufficient to do so. Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007), citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).
A factual sufficiency review consider s whether the evidence supporting guilt, though legally sufficient, is so weak the jury = s verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury = s verdict is against the great weight and pr eponderance of the evidence. Marshall v. State , 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) ; Watson v. State , 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State , 23 S.W.3d 1, 11 (Tex .Crim.App. 2000).
Application
The complainant testified at trial that on the morning of October 5, he loaned appellant five dollars for gas because he was taught that A we need to help people. @ He then left his apartment to go eat at the senior citizen = s center and when he returned, appellant was there looking thro ugh a window into his apartment A wanting to pay me back the $5.00, but what sh e really wanted to do was when I opened my wallet she grabbed it and she ran for a vehicle that was there and left. @5 The complainant also testified that he did not give appellant permission to have his money. He testified that when he retu rned from eating and f ound appellant at his apartment, he told her to just keep the money but he thought A she was waiting for me to open my billfold because when I opened my billf old, she stuck her hand in there and grabbed it and took it and ran out. @ When the prosecutor asked the complainant if he gave appellant permission or co nsent to take all of his money that day, he answered

A no. @
In support of his argument the complainant’s testimony “actually infers” he invited her into his residence, appellant cites an exchange during which the prosecutor asked the complainant: A If you could stand up and point to the woman who, that day, walked in your house and took your wa llet and took your cash? @ The complainant answered, A It was her. I don = t know why, but she

B maybe she needed money. I don = t know. @ The complainant then said, A Because at this time of the year it is cold and you immediately have somebody to come in when they = re outside and that is what I did at that time. @ Appellant contends the complain ant was referring to their encounter after lunch, when he said she took his $240 cash. After revie wing the record, however, we find the jury could have considered the comp lainant’s comment as referring to their encounter during the morning, when he gave her five dollars.
The complainant’s act of asking appellant in from the cold on that occasion does not prevent a jury finding appe llant entered again after lunch without the complainant’s effective consent. Consent given to an acquai ntance to enter and even stay at a house6 is not effective consent to enter for all purposes at all times. See Releford v. State, No. 10-05-00419-CR, 2007 WL 613717 (Tex.App.

B Waco Feb. 28, 2007, pet. ref = d) (mem. op., not designated for publication), citing Rangel v. State, 179 S.W.3d 64, 69 (Tex.App.

B San Antonio 2005, pet. ref = d). The fact that t he complainant allowed appellant into his home the morning of Oc tober 5 because it was cold does not bear on whether she had permission to enter later in the day. Releford, 2007 WL 613717 at *4, citing In re D.J.H., 186 S.W.3d 163, 165 (Tex.App.

B Fort Worth 2006, pet. denied). See also Tran v. State, No. 07-00-0147-CR, 2001 WL 482342 (Tex.App.

B Amarillo May 7, 2001, pet. ref = d) (mem. op., not designated for p ublication) (even assuming the evidence would otherwise be sufficient to show appellant had co nsent to enter the premises for the purpose of playing pool or using the computer, t here is nothing that would indicate any type of consent to enter the premises with the uncontroverted intent to commit theft).
Acknowledging the record is not entirel y clear whether the complainant invited appellant into his apartment during their morn ing encounter or after lunch, or on both occasions, the State contends also any consent given on the latter occasion was not effective because it was induced by appellant = s fraud that she was returning to repay the complainant the five dolla rs she borrowed that morning. 2 See Tex. Penal Code

2 In addition to this argument, the State contends circumstantial evidence of a lack of effective consent was introduc ed through the testimony of complainant = s next door neighbor. Evidence of a lack of effective consent may be shown by circumstantial evidence. Hathorn v. State, 848 S.W.2d 101, 107 (Tex .Crim.App. 1992); Mabra v. State, 997 S.W.2d 770, 774 (Tex.App.

B Amarillo 1999, pet. ref = d). The neighbor testified7 Ann. ' 1.07(19) (Vernon 2008) (consent is not effective if it is i nduced by force, threat or fraud); Gordon v. State, 633 S.W.2d 872 (Tex.Crim.App. 1982) (defendant gained entry into residence under pretense of using the telephone; entry was secured by fraud, negating effective consent).
The jury was instructed that consent is not effective if induced by deception. The definition of effective consent excludes consent induced by threat, force or fraud. 3 Tex. Penal Code Ann. ' 1.07(19) (Vernon 2008). U nder this definition, even A one who enters through an open door @ could do so without effective consent. Ellett v. State, 607 S.W.2d 545, 550 (Tex.Crim.App. 1980), quoting Searcy and Patterson, Practice Commentary on Sec. 30.02, 3 V. T.C.A. Penal Code 143. We agree with the State the evidence permitted the jury to find that wh en appellant returned to and entered the complainant = s apartment under the pretens e of repaying him the five dollars he loaned her that morning, she ent ered without the complainant = s effective consent. Cf. Eppinger v. State, 800 S.W.2d 652 (Tex.App.

B Austin 1990, pet. ref = d) (finding no evidence of fraudulent or deceptive behavior by defendant). at trial that on October 5, she saw appe llant try to open her door. She then saw appellant go to the complainant = s door but he was not home. She left and got into a white pickup. The complainant then retur ned and appellant went in to his apartment. See Mayfield v. State, 188 S.W.3d 316, 320 (Tex.App.

B Eastland 2006, pet. ref = d) (circumstantial evidence can su pport a finding of guilt despite the fact that it might lead to more than one inference).

3 Fraud is not defined in the Penal Co de. Fraud is defined elsewhere as A [a] knowing misrepresentation of th e truth or concealment of a material fact to induce another to act to his or her detriment. @ Black = s Law Dictionary 670 (7 th ed. 1999).8 When viewed in the light most favorable to the verdict, the evidence is legally sufficient to find appellant entered the complainant’s apar tment without his effective consent. Additionally, a neutra l review of all the evidence demonstrates neither that the proof of guilt is so weak nor that conflicting evidence is so strong as to render the jury = s verdict clearly wrong and manifestly unjust. We overrule appellant = s sole issue and affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.