Opinion filed September 19, 2013



### In The 

# Eleventh Court of Appeals

__________

No. 11

- 12

- 00161

- CR

__________ JASON ROBERT PARRICK , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 29th District Court Palo Pinto County , Texas Trial Court Cause No. 14692

M E M O R A N D U M O P I N I O N The jury convicted Jason Robert Parrick of the second

- degree felony offense
of burglary of a habitation with intent to commit theft . The jury assessed punishment at confinement for five years, and t he trial court sentenced Appellant accordingly. In on e issue on a ppeal, Appellant asse r ts that there is in sufficient
evidenc e he burglarized a “habitation

. ” We affirm.2 I. The Offense Appellant was convicted of burglary of a habitation under S ection 30.02 of
the Texas Penal Code. T EX

. P ENAL C ODE A NN

. § 30.02 (West 2011). A person commits the offense of burglary i f he enters a habitation or a building not then open to the public with intent to commit a felony, theft, or assault. I d. § 30.02(a)(1). The offense of burglary is a second

- degree felony if the burglary is of a habitation and a state jail felony if it is of a buildin g other than a habitation.
See id. § 30.02(c).
II

. Evidence at Trial
Amanda Parker did not recognize the man who took a washer and dryer
from a neighbor’s house

. Parker knew that her neighbors had moved out one to two weeks prior to the incident and had left some personal items, which they
intended to retrieve. Parker testified that , as far as she knew, the house was “ still
liveable .” Parker called the property manager, Denise Barker, who arrived at the
residence while the man was still there. Bar ker went to the house, recognized and
confronted Appellant, and called the police. Barker testified that David and Amy
Bell had moved out of the house but could return and occupy the house because they had paid rent on a month

- to

- month basis through the time the burglary
occurred. A s a part of her dut ies as property manager , Barker had checked the
condition of the house and the locks on the doors four or five times since the Bells
moved. Jeremy Hamscher , a d etective with the Mineral Wells Po lice Department, responded to Barker’s call , conducted a brief investigation, and arrested Appellant for burglary of a habitation. Detective Hamscher said that the inside of the house looked like someone was “in the process of moving out
, ” and he identified the washer, dryer, and a speaker as items t aken from the house

.3 Amy Bell testified that she, her husband , and their two children lived in the house until around two weeks prior to the burglary. Bell said that they left some personal property i n the house

— a desk, a washer and dryer, and other
miscellaneous items

— and that they intended to retrieve th e personal property

. Bell said that they also left a speaker, tools, and a dolly in a storage shed that was attached to the carport and connected to the house by a roof. As far as Bell knew, her family took all the clothes, food, cooking utensils, hygi ene items, and bedding when they moved

. Bell testified that
, at the time of the burglary, she would not
ha ve slept in the residence “ without an air mattress or something to lay on ” but
could have resided in the house if she wanted.
III

. Standard of Review We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia , 443 U.S. 307 (1979). Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State , 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet. ref’d). W e review all of the evidence in the light most
favorable to the verdict and determi ne whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). W e defer to the jury’s role as the sole judge of the witn esses’ credibility and the weight their testimony is afforded. Brooks , 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ult imate facts. Jackson , 443 U.S. at 319; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and defer to that dete rmination. Jackson , 443 U.S. at 326; Clayton , 235 S.W.3d at 778.4 IV. Analysis
A ppellant concedes there is sufficient evidence to support a conviction for
the lesser included of fense of burglary of a building; therefore, the sole issue on appeal is whether there is sufficient evidence to support the jury’s finding that the
house Appellant burglarized was a “ habitation ” within the meaning of the statute

. A “habitation” means a structure that is adapted for the ove rnight accommodation of persons

. P ENAL § 30.01 (1)

. In this context, “adapted” means
suitable. Blankenship v. State , 780 S.W.2d 198, 209 (Tex. Crim. App. 198 9 ) (op

. on reh’g) ; see Salazar v. State , 284 S.W.3d 874, 878 (Tex. Crim App. 2009 )

. Whether a structure is or is not suitable for overnight accommodation is a “complex, subjective factual question fit for a jury’s determination.” Blankenship
, 780 S.W.2d at 209. Relevant factors for this inquiry, none of which are necessarily essential or dispos itive, include whether someone was using the structure as a residence at the time of the burglary; whether the structure “contained bedding, furniture, utilities, or other belongings common to a residential structure”; and
whether the structure was of such character that it was likely intended to accommodate persons overnight

. Id. The jury’s determination of whether a burglarized structure is a “habitation” will be overturned on appeal only if no reasonable trier of fact could have found the structure to have been adapted for the

ove rnight accommodation of persons beyond a reasonable doubt. Id. at 209

– 10.
We have reviewed all the evidence under the foregoing standard, and we
conclude that a reasonable trier of fact could have determined , beyond a reasonable doubt, that the house was adapted for the ove rnight accommodation of persons

. At the time of the burglary, the house had been vacant for one to two week s

. A lthough the house contained scant furniture and no bedding, food, cooking
utensils , or hygiene items
, it was a completed house with a kitchen, living room, bathroom, and bedrooms. The house was wired for electricity and equipped for5 utility service

. In addition, a property manager actively check ed the condition of
the house . Finally, the Bells retained a possessory right to occupy the house and could have slept there overnight

. W e conclude that the record contains sufficient evidence from which a rational trier of fact could have found beyond a reasonable
doubt that the house was a “habitation

. ” Appellant also contends that the storage shed connected to the house by the carport, which contained the speaker taken by Appellant, was “definitely a building and not a habitation” because “sheds are not generally used for overnight

accommo dation.” But S ection 30.01 expressly includes “each structure appurtenant to or connected with the structure,” and the jury was free to determine
that the storage shed fit within the definition of a “habitation” under the statute.
See P ENAL § 30.01(1)(B) ; see also Darby v. State , 960 S.W.2d 370, 371

– 72 (Tex. App.

— Houston [1st Dist.] 1998, pet. ref’d) (holding term “habitation,” as used in burglary statute, covered unattached garage in which victim stored personal items). Moreover, Appellant was charged w ith and convicted of a single count of burglary, and the parties do not dispute that Appellant removed a washer and dryer from the house itself. Because a rational trier of fact could have found beyond a reasonable
doubt that the house was a “habitation” under the statute, we hold that the evidence is sufficient to support the conviction. Appellant’s sole issue is overruled.
V. This Court’s Ruling We affirm the judgment of the trial court.

MIKE WILLSON September 19, 2013 JUSTICE Do not publish. See T EX

. R. A PP

. P

. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Willson, J.