COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-16-00064-CR

TY KEALOHA EOFF AKA TY 

KEGLOHA EOFF

APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1415130D

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MEMORANDUM OPINION1

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Appellant Ty Kealoha Eoff a/k/a Ty Kegloha Eoff appeals his conviction for 

burglary of a habitation. In two issues, Eoff argues that the evidence is 

insufficient to support his conviction and that the trial court committed reversible 

charge error. We will affirm.

 

1See Tex. R. App. P. 47.4.
2

Mark Thome was asleep in his bedroom at around 3:45 p.m. one weekday 

when he was awakened by a series of loud bangs.2 He grabbed his gun, headed 

down the hallway, and noticed that the back door had been forced open. He also 

saw two men, whom he identified at trial as Nathan Tealer and Eoff. Tealer was

leaning forward as he entered the house through the open doorway, and Eoff 

was close behind Tealer but still outside of the house. Fearing for his life, Thome 

raised his gun and fired, causing Tealer and Eoff to take off running. Thome saw 

Eoff jump over the backyard fence and Tealer fall to the ground, and Thome

called 911.3

Meanwhile, Eoff approached two homeowners on foot—one who lived on 

the same street as Thome and another who lived several blocks away. One 

refused to help, and when the other offered to call the police, Eoff instead asked 

if he could call his mother. After Eoff spoke to his mother, she came and picked 

him up, they returned to their nearby house, and she called the police to report 

that someone had shot at her son. The police figured that the incident at 

Thome’s house and the incident that Eoff’s mother had reported were related,

and when they questioned Eoff, he told them that he was walking down the street 

when a man started shooting at him.

 

2Thome worked the night shift.

3Tealer had been shot and died.
3

A grand jury later indicted Eoff for burglary of a habitation. The trial court’s 

charge at guilt/innocence instructed the jury that it could convict Eoff either as a 

principal or as a party to the offense. The jury found Eoff guilty and assessed his 

punishment at twenty-five years’ confinement. The trial court sentenced him 

accordingly.

Eoff argues in his first issue that the evidence is insufficient to support his 

conviction for burglary of a habitation both as a principal actor—because he 

never entered Thome’s house—and as a party—because there is no evidence 

that he solicited, encouraged, directed, aided, or attempted to aid Tealer’s 

commission of the burglary. Eoff argues,

[T]he evidence puts Nathan Tealer and Ty Eoff in the victim’s 

backyard. Tealer and Eoff were friends. Eoff was on the victim’s 

porch when Tealer was in the victim’s house. That’s not enough to 

show that Eoff[,] acting with intent to promote or assist the 

commission of the offense, solicited, encouraged, directed, aided, or 

attempted to aid Nathan Tealer’s commission of this burglary.

Eoff improperly disregards numerous reasonable inferences that the jury could 

have drawn from the evidence and relied upon to convict him as a party.

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view 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, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the 

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the 
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evidence, and to draw reasonable inferences from basic facts to ultimate facts. 

Id., 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), 

cert. denied, 136 S. Ct. 198 (2015).

As the charge provided, a person commits burglary of a habitation if, 

without the effective consent of the owner, he (a) enters a habitation with intent to 

commit theft or (b) enters a habitation and commits or attempts to commit theft. 

Tex. Penal Code Ann. § 30.02(a)(1), (3) (West 2011). A person commits theft if 

he unlawfully appropriates property with intent to deprive the owner of the 

property. Id. § 31.03(a) (West Supp. 2016).

“A person is criminally responsible as a party to an offense if the offense is 

committed by his own conduct, by the conduct of another for which he is 

criminally responsible, or by both.” Id. § 7.01(a) (West 2011). A person is 

criminally responsible for an offense committed by the conduct of another if 

“acting with intent to promote or assist the commission of the offense, he solicits, 

encourages, directs, aids, or attempts to aid the other person to commit the 

offense.” Id. § 7.02(a)(2) (West 2011). Party participation may be shown by 

events occurring before, during, and after the commission of the offense and may 

be demonstrated by actions showing an understanding and common design to 

do the prohibited act. Salinas v. State, 163 S.W.3d 734, 739‒40 (Tex. Crim. 

App. 2005). Mere presence of a person at the scene of a crime, or even flight 

from the scene, without more, is insufficient to support a conviction as a party to 

the offense, but it may be sufficient to sustain a conviction when combined with 
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other incriminating evidence. Thompson v. State, 697 S.W.2d 413, 417 (Tex. 

Crim. App. 1985). Circumstantial evidence may be used to prove that a person 

is a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 

2006).

The evidence viewed in the light most favorable to the verdict shows that 

the burglary occurred at approximately 3:45 p.m. on a weekday and that no cars 

were parked in Thome’s driveway. Detective Griesbach of the Arlington Police 

Department testified that burglaries commonly occur when people are away from 

home and that to a person looking at the outside of Thome’s house, it might not 

have been apparent that anyone was home. The evidence also showed that the 

gate to Thome’s backyard was closed and locked and that to get to Thome’s 

back door, Eoff and Tealer had to have scaled the fence that completely 

surrounds the backyard. Once in the backyard, Thome’s back door was kicked 

in, which caused part of the doorframe to be ripped off of the wall. Sergeant 

Glenn of the Arlington Police Department testified that the damage to the back 

door was consistent with the door being forced open in order to gain entry to the 

house. Once the door was forced open, Eoff did not leave but was instead 

directly behind Tealer, who had already entered the house when Thome opened 

fire.

After Eoff fled the scene, a homeowner offered to call the police, but Eoff 

refused and instead called his mother. While waiting for his mother to arrive, Eoff 

lay down on the floor of the homeowner’s garage as if he was hiding. Eoff thus 
6

sought to avoid police involvement and did not warn the homeowner that a 

person in the neighborhood was shooting at people, as he recounted to the 

detectives who later interviewed him.

The police later learned that Eoff and Tealer were friends and that Eoff had 

lied to detectives when he had told them that the only “Nathan” that he knew was

a “Nathan Lusk.” Further, Tealer’s girlfriend at the time of the burglary testified 

that she had been communicating with Tealer that day, that she had last spoken

with Tealer at around 3:30 p.m. that day, and that she had heard Eoff’s voice 

during the conversation. An examination of Tealer’s cellphone showed that 

Tealer had texted his girlfriend at approximately 3:35 p.m. on the day of the 

burglary, “Trying make this money, baby girl.”

Although the jury could not have convicted Eoff as a principal—because 

there is no evidence that he entered Thome’s house—it certainly could have 

convicted him as a party, reasonably inferring from all of the evidence above that 

Eoff, acting with intent to promote or assist the burglary, solicited, encouraged, 

directed, aided, or attempted to aid Tealer in committing the burglary. See Tex. 

Penal Code Ann. § 7.02(a)(2); Salinas, 163 S.W.3d at 739‒40; Thompson, 697 

S.W.2d at 417. The evidence is therefore sufficient to support Eoff’s conviction 

for burglary of a habitation. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. 

We overrule his first issue.

Eoff argues in his second issue that the trial court erred by charging the 

jury under the law of parties. However, in general, the trial court may instruct the 
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jury on the law of parties if there is sufficient evidence to support a jury verdict 

that the defendant is criminally responsible under the law of parties. Ladd v. 

State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 

(2000). Moreover, if the evidence is not sufficient to sustain a conviction as a 

primary actor, the trial court should give an applicable law-of-the-parties 

instruction. McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974). Both 

of these principles apply here. The trial court did not err by charging the jury 

under the law of parties. We overrule Eoff’s second issue.

Having overruled both of Eoff’s issues, we affirm the trial court’s judgment.

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: December 1, 2016