## NO. 12

- 14

- 00127

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THOMAS DARRELL HOWEL L, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APP

EAL FROM THE 420TH

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
Thomas Darrell Howell a ppeals his conviction s for two counts of burglary of a habitation, violation of a protective order, and retaliation. In one issue, Appell ant contends that the evidence is insufficient to support the verdict as to any of the convictions. We affirm

.

B ACKGROUND Appellant was charged by indictment with two counts of burglary of a habitation, violation of a protective order, and retaliation
, and pleaded “not guilty ” to all four charges. The matter proceeded to a jury trial. The evidence at trial showed that Appellant and the complaining witness, whom the indictment refers to as “C.M.O.,” had been in a dating relationship since 2011. On Janu ary 14, 2013, C.M.O. reported to the police that Appellant had assaulted her. She obtained a magistrate’ s protective order prohibiting Appellant from, among other things, going near her residence or committing family violence against her. On January 25, 2013, while the protective order was still in effect, Appellant arrived at C.M.O.’s house and began asking why she had not dropped the charges. Appellant walked in through an open door and assaulted C.M.O. for hours.
He restricted her breathing by putting his h ands on her throat and face, sexually assaulted her
,2

and told her that he was going to kill her and her children because she had filed the assault charge against him

. The next day, with the help of her landlord, C.M.O. was able to get away from Appe llant. Appellant fled the residence, and C.M.O. went to stay at a neighbor’s house for a while, fear ing that Appellant might come back. About a week later, C.M.O. returned to her house with a friend
to retrieve some papers

. They found Appellant in the ho use, and he fled again. Some items of food and pictures of C.M.O.’s children were missing. The State brought several criminal charges against Appellant. He pleaded “ not guilty, ” and the matter proceeded to a jury trial. The jury found Appellant guilty of two burglary charges, violation of a protective order, and retaliation. Appellant pleaded true to a prior felony conviction of robbery, enhancing the punishment range for each crime. The jury assessed his punishment at imprisonment for thirty

- five yea rs for the first burglary, ten years for the second burglary, ten years for the violation of a protective order, and twenty years for retaliation. The trial court sentenced Appellant accordingly, and this appeal followed.

S UFFICIENCY OF THE E VIDENCE
In his sole issue, Appellant contends that the evidence is insufficient to support his
conviction s

. Standard of Review and Applicable Law Legal sufficiency of the evidence is the constitutional minimum required by the Due
Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia , 443 U.S. 307, 315

- 16, 99 S. Ct. 2781, 2786

- 88, 61 L. Ed. 2d 560 (1979); Escobedo v.
State , 6 S.W.3d 1, 6 (Tex. App.

— San Antonio 1999, pet. ref'd); see also Brooks v. State , 323
S.W.3d 89 3, 895 (Tex. Crim. App. 2010). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson , 443 U.S. at 319, 99 S. Ct. at 278 9; see also Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Johnson , 871 S.W.2d at 186. A successful legal sufficiency ch allenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida , 457 U.S. 31, 41

- 42, 102 S. Ct. 2211,
2217

- 18, 72 L. Ed. 2d 652 (1982). This familiar standard gives full play to the responsibility of3

the trier of fact to res olve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from the basic facts to ultimate facts. See Jackson , 443 U.S. at 319, 99 S.
Ct. at 2789. Under this standard, we may not sit as a thirteenth juror and substitute our judgment fo r that of the fact finder by re evaluating the weight and credibility of the evidence. See Dewberry
v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks , 323 S.W.3d at 899. Instead, we defer to the fact finder's resolution of co nflicting evidence unless the resolution is not
rational. See Brooks , 323 S.W.3d at 899

- 900; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The duty of a reviewing court is to ensure that the evidence presented actually supports a conclusi on that the defendant committed the crime charged. See Williams v.
State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State
, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “ accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State ’ s burden of proof or u nnecessarily restrict the State’ s theories of l iability, and adequately describes the particular offense for which the
defendant was tried. ” Id

. Burglary of a Habitation on January 25, 2013
To support Appellant’s conviction for burglary of a habitation on January 25, 2013, the State was required to pr ove that Appellant
, (1) without C.M.O. ’s effective consent
, (2) intentionally or knowingly entered her habitation , and (3) committed or attempted to commit sexual assault, retaliation, or assault family violence with occlusion. See T EX

. P ENAL C ODE A NN

. § 30.02 (a)(3) (West 2011). Appellant argues that the State failed to prove that (1) Appellant entered C.M.O. ’ s home “with the intent to commit anything” or that (2) C.M.O. received an injury as a result of Appellant’s actions. We note that while a convicti on for burglary under penal code section 30.02(a)(1) requires proof of intent at the time of entry, a conviction

— s uch as Appellant’ s

—

u nder penal code section 30.02(a) (3) does not. See DeVaughn v. State
, 749 S.W.2d 62
, 65 (Tex. Crim. App. 19 88 ). Here, the State needed only to show that Appellant entered C.M.O.’s home
without her consent and while inside committed one or more of the named acts.4

C.M.O. conceded that Appellant had lived with her previously. But a protective order
was in effect on the date of the offense

. And according to C.M.O., Appellant was not living
there at the time

. Appellant and C.M.O. offered differing versions of how Appellant came to be at C.M.O.’s house that day. According to C.M.O. , on January 25 , 2013, Appellant asked her to

m eet him at a park in Nacogdoches, and s he did. They talked and agreed to get back together if Appellant “got the help he needed.” Later that night, after C.M.O. had put her children to bed, she was on her porch smoking a cigarette when Appellant arrive d, unannounced and uninvited . Appellant repeatedly asked
C.M.O. why she had not dropped the charges against him. When Appellant came onto the porch,
C.M.O. ran inside the house to get her cell phone to call the police . Appellant entered the house
withou t C.M.O.’s consent, took her phone, and assaulted her. C.M.O. repeatedly denied giving Appellant permission to enter her home. While inside, Appellant continued to question C.M.O. about why she never dropped the charges. She tried to tell him that she wo uld drop the m , but h e repeatedly hit her in the face until “everything just went black.” The hitting and questioning went on for hours. At one point, Appellant tried to choke C.M.O. on the floor. He placed his hands around her throat and then put
his ha nd over her face , restricting her breathing. She convinced him to let her up, and then he
forced her to perform oral sex followed by sexual intercourse with him

. After the sexual intercourse, Appellant told C.M.O. that he was going to kill her and her ch ildren because she had filed charges against him. The next morning, Appellant and C.M.O. took C.M.O.’s childr en to the school bus stop
and then returned to the house . A few hours later, C.M.O. ’ s landlord, Kimberly Freeman, called. Appellant returned C.M .O. ’ s phone to her so that she could speak to Freeman. F reeman sensed that something was wrong
, so she and her husband call ed 911 . Freeman relat ed to C.M.O. that they had called 911, and C.M.O. informed Appellant that the police were on their way. Appel lant began to hide in the closet , and C.M.O. took that opportunity to exit the residence.
C.M.O. ran to Freeman’s vehicle. According to Freeman, C.M.O. clearly exhibited injuries consistent with having been
beaten. O ne of the deputies investigating the incident noted that C.M.O. had several injuries
,5

including abrasions, marks, and bruising to her eyes and face. Photographs of C.M.O. showed that she had sustained injuries.
A ccording to Appellant ’s version of events , he was living with C.M.O. in Januar y of
2013. His mother also testified that he and C.M.O. were living together. Appellant stated that he was planning to move out, and C.M.O. was upset that he was leaving. He denied assaulting
C.M.O. on January 14, 2013, but he was ar rested based on her complaint and spent several days in jail.
A ppellant further testified that on January 24, 2013
, he and C.M.O. met at a mall so she
could return his clothes. From there, t hey went to a restaurant and then a park. C.M.O. told Appellant that she had a figh t with one of her neighbors. They ran some errands

. Eventually, Appellant agreed to stay with C.M.O., and the two of them went “home” to C.M.O.’s house

. According to Appellant , he and C.M.O. did not argue, he did not assault C.M.O ., and they had

consensua l sexual relations that night

. That same night, he said, C.M.O. got into a nother fight with her neig hbor

. Having examined the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to prove Appellant committed t he offense of burglary of a habitation on or about January 25, 2013

. See Brooks , 323 S.W.3d at 899. T he jury was free to disbelieve Appellant and believe C.M.O.’ s testimony regarding the events of that day

. See id. at 899

- 900

. A rational trier of fact c ould have found that Appellant entered C.M.O.’s home without her consent and committed or attempted to commit any or all of the underlying offenses

. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789

. Therefore, we conclude that the evidence is legally
suff icient to support Appellant’s conviction for burglary of a habitation on or about January 25,
2013

. Accordingly, we overrule Appellant’s sole issue as to that conviction.
Protective Order Violation Appella nt contends that the evidence i s legally insuffici ent to support his conviction for violation of a protective order , but he provides no specific argument. T o support the conviction
for the offense as alleged in the indictment , the State was required to prove that (1) Appellant knowingly or intentionally committed family violence

— specifically assault

— a gainst C.M.O. (2)
in violation of an order issued by a m agistrate judge pursuant to Article 17.292 of the T e xas Code of Criminal Procedure. See T EX

. P ENAL C ODE A NN

. § 25.07 (West Supp. 2014). Proof of6

a def endant’s knowledge of the protective order is required for conviction. See Harvey v. State
, 78 S.W. 3 d 368
, 373 (Tex. Crim. App. 2002 ). The term “family violence” includes “ dating violence. ” T EX

. F AM

. C ODE A NN

. § 71.004 ( West 2014). “Dating violence” incl udes an assault , other than a defensive measure to protect oneself, committed against a victim with whom the actor has or has had a dating relationship.
T EX

. F AM

. C ODE A NN

. § 71.0021 (West 2014). Both Appellant and C.M.O. testified that Appellant and C.M. O. had been in a dating relationship since 2011

. They stated that their relationship was of an intimate nature and that they had lived together at times during the relationship

. Thus, an y assault by Appellant against C.M.O. constitute s family violence.
C .M.O. testified that o n January 14, 2013, she contacted the police after Appellant assaulted her by placing his arm around her neck until she passed out

. T he police arrested Appellant. C.M.O. sought and obtained an emergency protective order against him. The protective order contains Appellant’s signature
, signifying his acknowledg ment that he received a copy of the order. It also contains the signature of the Nacogdoches County magistrate who
issued the order, affirming that a copy was personally deliv ered to Appellant on January 15,
2013

. The order expressly prohibits Appellant from committing violence against C.M.O. A certified copy of the order was admitted into evidence. C.M.O. testified that on January 2 5 , 2013, Appellant struck her repeatedly abo ut the head
and face. Other evidence corroborated C.M.O.’s testimony. Freeman and one of the deputies investigating the incident testified that they saw C.M.O.’s injuries

. And p hotographs of the injuries were admitted into evidence

. In the light most fa vorable to the verdict, t he evidence shows that a protective order was issued against Appellant , the order prohibit ed violence against C.M.O.
, Appellant received a copy of the order, and he violat ed the order by assaulting C.M.O. W e conclude that the evid ence is sufficient to support the jury’s resolution that Appellant is guilty of violation of a protective
order. See Brooks , 323 S.W.3d at 899. Accordingly, we overrule Appellant’s sole issue as to
that conviction.
Retaliation To support Appellant’s conv iction for retaliation as alleged in the indictment , the State was required to prove that Appellant intentionally or knowingly threatened to harm C.M.O. by7

an unlawful act

— specifically murder

— i n retaliation for or on account of her status as a person
who h ad reported the occurrence of a crime. T EX

. P ENAL C ODE A NN

. § 36.06 (West 2011 )

. C.M.O. testified that on January 25, 2013, Appellant told her that he had a whole week to think about everything and that the only way he could get out of the assault charge was to kill
her

. He said that he was going to kill her and her children as well because they had seen him. A
rational trier of fact could have found that this was a threat in retaliation for or on account of her status as a person who had reported the o ccurrence of a crime. Having examined the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to prove Appellant committed the offense of retaliation

. See Brooks
, 323 S.W.3d at 899. Accordingly, we overrule Ap pellant’s sole issue as to that conviction. Burglary of a Habitation on January 31, 2013 To support Appellant’s conviction for burglary of a habitation on January 31, 2013, the State was required to prove that Appellant, (1) without C.M.O.’s effective cons ent, (2) intentionally or knowingly entered her habitation, and (3) committed or attempted to commit theft of property, specifically food and photographs. T EX

. P ENAL C ODE A NN

. § 30.02 (a)(3 ) (West 2011).
C.M.O. testified that a bout a week after the first burglary
, she and a friend returned to her house to gather some of her belongings. As she was walking through her house, she saw that her
shower curtain was closed. Her friend pulled the shower curtain back and found Appellant
inside the bathtub

. C.M.O. ran out of the house and contacted law enforcement. Once the deputies arrived, C.M.O. went back into her house and discovered that food and pictures were missing . C.M.O. had not given Appellant permission to enter her home. C.M.O.’s friend related
a si milar story and identified Appellant as the person he saw in the bathtub that day. Appellant , on the other hand, testified that he was not in C.M.O.’ s home that day

. According to Appellant, he was at C.M.O.’ s neighbor’s home from January 25, 2013
, until February 1, 2013. On February 1, he walked to C.M.O.’s mailbox and waited there until the police arrived and arrested him. In contrast, a Nacogdoches County sheriff’s deputy testified that he was involved in a search for Appellant on January 31, 2013. A t about 4:00 a.m. on February 1, the deputy went inside C.M.O.’s home and arrested Appellant after he found him in bed asleep.8

Having examined the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to prove Appellant intentionally entered C.M.O. ’s habitation without
her effective consent and committed theft of property

. See Brooks , 323 S.W.3d at 899. The jury’s resolution of the conflicting evidence was rational. See id. at 899

- 900

. Thus, we hold that
the eviden ce is sufficient to support Appellant’s conviction for burglary of a habitation on or about January 31 , 2013

. Accordingly, we overrule Appellant’s sole issue as to that conviction.

D ISPOSITION Having overruled Appellant’s sole issue as to each of his convictions , we affirm the trial court’s judgment

.



### B RIAN 

### H OYLE Justice

Opinion delivered August 5, 2015

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( D O NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 5 , 2015

NO. 12

- 14

- 00127

- CR

THOMAS DARRELL HOWEL L,

Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 420th District Court of Nacogdoches County, Texas (Tr.Ct.No. F1320262) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED th at the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance.

Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.