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

NO. P D-1069-10

CHRISTOPHER ROBERT GEAR, Appellant

v.
THE S TATE O F TEXAS

ON STATE ’S P ETIT ION F OR DISCRETIONARY REVIEW F ROM THE TWE LFTH COURT OF AP P EALS

ANG ELINA COUNTY

H E R V E Y , J., delivered the opinion of the Court in w hich K E L L E R , P .J., and W O M A C K , K

E A S L E R and A L C A L A , JJ., joined. C O C H R A N , J., fi led a dis senting opi nion in wh ich P R I C E and J O H N S O N , JJ., joined
. M E Y E R S , J., dissented
.
O P I N I O N Appellant was convicted in a bench t rial of attempted burgla ry of a habitation. The court 1

of appea ls decide d that the evidenc e is leg ally insufficient to support appellant’ s conviction beca use
it would have been unrea sonable for a fac t finder to i nfer that appellant “intended to commit a felony , theft, or an assault inside t he house” when he attempted to enter the complainant’s home

1 See T E X . P E N A L C O D E § 15.01(a) ; T E X . P E N A L C O D E § 30.02(a) (1).Gea r–2 throug h a window that he had broken. See Gear v. State , No. 12 -09-00226-CR, slip op. at 8 (Tex.App.–Ty ler, delivere d May 12, 2010) (not desig nated for publication). We decide that a fac t 2

finder could rea sonably infer that appellant intended to commit theft when he attempted to enter the complainant’s home thr oug h the broke n window. 3

The complainant testified that, just afte r lunch on J anuar y 2, 2009, she was inside her home
and hear d a rattling noise from a side door that had been nailed shut. Soon afte r this, she hear d three
loud ba ng s. When she went into a bedroom to inve stiga te, she came fac e to f ace with a ppellant as
h e wa s try ing to enter her home throug h a broken window that was not broken b ef o re t h e complainant hear d the noises and befor e her encounte r with appellant. The c o mp la inant testified that appellant “ looked startled like he didn’t know [she] was ther e.” A ppellant said something like, “I
didn’t do it” and ra

n. The c omplainant testified: Q. [S TATE]: And y ou went in. And wha t happene d next?

A. [C OMPL AI

NANT]: I went in, and the window was busted. So I immediately ran over to the window.

. . . I stepped out the window like this (indicating ), and then this y oung man stepped in the window. I mean, like we wer e rig ht here (indicating ). We
wer e rig ht there

. And I just–I panicke d. I don’t know. I said, “What are y ou doing?” or something . And he sa id something to the fa ct, “I didn’t do it” or something

.

2 The indictment in this case alleg ed that appellant did “with the specific intent to commit the offe nse of burg lary of a habitation, do an act, to-wit: brea k a window, which amounted to more than
mere prepa

ration that tended but failed to eff ect the commission of the offe nse intended, without the eff ective c onsent” of the complainant.

3 The g round upon which w e g rante d discretionar y revie w states:
The Court of Appea ls err ed in holding that the evidenc e prese nted at trial was leg ally insufficient to support the trier of fac t’s verdic t of guilt. Specifica lly that the
ev i d ence was lega lly insufficient to show that the defendant’s attempted entry into the habitation was done with the spec i fi c i ntent to commit theft, or an assault, or another felony offe nse.Gea r–3 Q. What did he do then?
A. He took of

f and I took off. He took off this way , and I took off my

way

. * * * Q. Now, what was he doing when y ou first saw him?

A. W hen I was walking toward the window, I didn’t see him. When I g ot t o t h e window and bent over to look out the window, he was jumping towards me. That’s how we met. He was just–li ke he was pranc ing towards me, so–like he was jumping in. * * * Q. Okay

. Now, what wer e his actions when y ou saw him consistent with or what did that–

A. He just looked startled. I mean, I –I just rea lly

–I t happene d rea lly fast. He looked startled like he didn’t know I was there. Well, we didn’t expect to see eac h other. I was startl ed beca

use he was jumping towards me, and I g uess he was startled beca use I was ther e. L ike I said, I just said, “What are y ou doing?” And it kind of happene d so fast. He ran one way , and I ran the other wa y
. An d I didn’t see him any more– * * * Q. What did he appea

r to be doing when–

A. I thought he was jumping in. I thought he was–I thought he was jumping towards
me. I rea lly thought he was jumping in. That’s what startled me. That’s what made me run. I ’m, like, y ou know, I didn’t know–that was r eally scar y , so. . . 4 Appellant testified at trial that he did not attempt to brea k into the complainant’s home and that he did not intend to steal any thing or to harm any one. Appe llant testified that he thoug ht that
the complainant’s h o m e wa s abandone d when he went to the back of the home to urinate. He
testified that he may have punched the complainant’s home beca use he was a g itated at himself for having just quit his roofing job with no trans p o rt ati on and only about a dollar in his pocket.

Acc ording to appellant, he saw the complainant “throug h a hole in her window” asking him if he was

4 Soon afte r t his encounte r wit h appellant, the complainant was broug ht to wher e the police had detained appellant, and appellant told the complainant that he had not been try ing to brea k into her home

.Gea r–4
try ing t o b re ak i nto her home, which he denied. Appellant denied brea king the window and

“ra ttling” the side door. 5 Appellant, howeve r, had previously stated to the police that he broke the compl ai n ant’s
wi ndow when he leane d on it. An investiga tor (He rring ton) with the Ang elina County Sheri ff ’s Depa rtment testified in rebuttal: Q. [S TATE]: But is it rea l clea r to y ou that he said he leane d o n the window and broke the window in? A. [HERRI

NGTON ]: Yes, sir. Q. Did he e ver te ll y ou that he hit the house with his fist or any thing like that? A. No, sir. The court of appe als dec ided t hat “there is sufficie nt evidenc e to conclude that [appellant]

was attempting to brea k i n t o t h e house,” but that “ther e is no evidenc e that allows any infere nce
about what Appellant intended to do within the house,” even though “a rational finder of fac t could
conclude that Appellant’s intentions wer e not honorable .” Gear , slip op. at 7. The court of appea ls
also decide d that the “impl ausibility ” of appellant’ s story “as to wha t he was doing that day at t he [complainant’s] house

. . . does not lead to the conclusion, even in a light most favor able to the
verdic t, that he intended to commit some felony , to steal something, or to assault a person within the
house.” Gear , slip op. at 5. The cour t of appe als stated:

We ag ree with the S tate that it appea rs, an d t h e trial court believed, t hat Appellant
was not being truthful as to what he was doing that day at the [complainant’s] house. But while the i mplausibili ty of his story

sug g ests that it is not true, it does not lead

5 The court of appea ls stated that appellant “testified that he broke out the window and made the noises that [t he complainant] hear d.” Gear , slip op. at 4. The rec ord, howeve r, does not support this assertion. Appellant testified a t trial that he did not break the window.Gea r–5

to the conclusion, even in a light m o s t favor able to the verdic t, that he intended to commit some felony , to steal something, or to assault a per son within the house. * * * I n this case , there is no rea sonable infere nce to support the conclusion that Appellant intended to commit a felony , theft, or an assault within the house. I ndeed, the State has not identified, either at trial or on appea l, what evidenc e supports the conclusion that Appellant intended to c ommit a felony , theft, or an assault within the house. I t is rea sonable to conclude that Appellant pushed at the nailed-shut door and broke the window bec ause he was try ing to g et into the house. B ut among the var ious things he could have done inside, there is no evidenc e to support a conclusion that he intended to commit a fe lony , theft, or a n assault. * * * There is the matter of Appellant’s denials. He denied he was try ing to brea k into the house.

. . . But, as we have said, there is sufficie nt evidenc e to conclude that he was attempting to brea

k into the house. His denial of being the person who b ro k e the window is consistent with his intending to commit a felony , theft, or an as s au lt within the house. But as with his flig ht, his unconvincing story allows the conclusion t h at i t i s not true but not that he intended to commit a felony , theft, or an assault within the house.

Gear , slip op. at 5-7.

I n deter mining whether the evidenc e is leg ally sufficie nt to support a conviction, a revie wing

court must consider all of the evidence in the light most favor able to the verdic t and deter mine
whether , based on that evidenc e and rea sonable infere nces there from, a rational fac t finder could
have found the essential elements of the crime bey ond a rea sonable doubt. Jack son v. Virginia , 443

U.S. 307, 318-19 (1979); Hooper v. State , 214 S.W .3d 9, 13 (Tex.Cr.App. 2007). T h i s “fa miliar

s t an d ar d g ives full play to the responsibility of the trier of fac t fairly to resolve conflicts i n t h e testimony , to weig h the evidenc e, and to draw rea sonable inf er en ces from basic fac ts to ultimate
fac ts.” Jack

son , 443 U.S. at 319. “Ea ch fac t need not point direc tly and independe ntly to the g uilt
of the appellant, as long as the cumulative forc e of all the incriminating circ umstances is sufficie nt to support the conviction.” Hooper , 214 S.W .3d at 13.
The iss ue in this case is whether a fa ct finder

may rea sonably infer that appellant intendedGea r–6

to commit a felony , theft, or an assault insi de the c omplainant’s home whe n he attempted to enter
the home throug h the window that he broke. This Court’s decision in Solis v. State is instructive. 6

The evidenc e in Solis showed that the defe ndant remove d a scre en from a window of Alfre d’s habitation, took the scre en to Pierce ’s habitation, and place d the scre en in Pierce ’s front y ard befor e
Pierce interrupted him as he was attempting to enter Pierce ’s habitation. Solis , 589 S.W .2d at 445-

47. Solis was char g ed with, and convicted of, attempted burgl ar y of Alfre d’s habitation by attempting to e nter Alfr ed’s ha bitation with the intent to commi t theft. Id.
This Court decide d that the evidenc e, viewed in the light most favor able to the trial court’s judgme nt, was i n s u fficie nt to establish bey ond a reasonable doubt the element of S olis’s criminal
intent to commit t heft in Alfr ed’s ha bitation. Id . This Court stated:
The only circ umstance rele vant to proof of appellant’ s criminal intent is his remova l of [Alfred’s] scre en. We ag ree with the State that this circ umstance would have been
more incriminating if appe llant had been interrupted at the scene immediately afte r the remova l of the scre en. Howeve r, the State’s o wn wi t n es ses indicate that appel l an t, afte r removing the Alfre d scre en, did nothing further there , althoug h he had not been interrupted or observe d, and althoug h a purse was in plain view only a few fee t from the window. I nstead, appellant took the [Alfred] sc ree n to the Pierce home, place d it on the lawn near the Pierce front window, and attempted to enter the Pier ce h o u s e b efor e being interrupted by Mrs. Pierce

. Appellant is char g ed with attempt i n g b u rg lary with intent to steal from the Alfred home, not the Pierce residenc e. We conclude that, althoug h t h e circ umstances show that appellant probably intended to enter the Alfre d house with intent to commit theft, his behavior afte r remova l of the scre en was sufficie ntly inexpl icable that reas onable doubt
rema ins as to what his specific criminal intentions actually wer e.
Solis , 589 S.W .2d at 446-47 (e mphasis in origina l).
Unlike the evidenc e rela

ting to the char g ed offe nse in Solis , the evidenc e in this case shows
that appellant was interrupted as he was at t em p t i n g to enter the complainant’s home i mmediately

6 589 S.W .2d 444 (Tex.Cr.App. 1979).Gea r–7
afte r he had broken the complainant’s window, at which time he ran. We believe that Solis supports

a decision that a fac t finder could rea sonably infer from these fac ts that appellant intended to commit
theft. See id

. (“Instead, [t he defe ndant] took the [Alfred] scre en to the Pierce home, place d it on the
lawn near the Pie rc e fr o nt window, and atte m pted to enter the P ierc e hous e before being

interr upted by Mrs. P ierc e

. [The d e f endant] is char g ed with attempting burg lary with intent to steal
from the Alfred home, not the Pierce residenc e.”) (empha sis in italics in orig inal, emphasis in bold added)

. I n addition, this Court has rec ently rec og nized that a fac t finder can consider a defe ndant’s

7

untruthful statement (in this case two “implausible” and inconsistent statements by appellant) as
aff irmative evidenc e of g uilt. See Padilla v. State , 326 S.W .3d 1 9 5 , 2 0 1 (Tex.Cr.App. 2010) (ra tional f act finder c an conside r a de fenda nt’s untruthful statements, in connec tion with the other
circ umstances of

the ca se, as a ffirma tive evidenc e of the defe ndant’s g uilt).

On this rec ord, we decide that a fac t finder could rea sonably find bey ond a rea sonable doubt
that the rec ently unemploy ed appellant with about one dollar in his pocket intended to commit theft 8

inside the complainant’s home when he attempted to enter the home throug h the window that he had

7 See also In re J.O.T. , No. 13-06-226- CV, 2007 Tex. App. L EXI S 5637, at * 5 , 7-8 (Tex. App.—Corpus Christi J uly 19, 2007, no pet. ) ( me mor andum opinion not desig nated for publication). (“H ere , J .O.T. was interrupted [after which he ran] while in the ac t of putting a knife into the residents’ door jamb, making it impossibl e to know i f he would have left the premises of hi s own acc ord. Fur

thermore , there was no e vidence that [t he def endant in Solis ] made an attempt to ope n the [Alfred] window [after re m o v i ng the scre en], wher eas J .O.T. was actua lly wig g ling a knife betwee n the doorjamb and the back door of the residents’ home. There fore , the evidenc e of g uilt is
more a ppare nt than in Solis .”) ( citations to Solis omitted).

8 We disag ree with the court of appeals t o the ex tent that it s u gges t ed t h at a reasonable fac t finder could not consider appellant’ s lack of money as a circ umstance rele vant to his criminal intent. See Gear , slip op. at 7 n.6 (“Without more, the fac t that [appellant] did not have much money in his pocket doe s not allow the infer ence that he intended to c ommit t heft inside the house .”).Gea r–8 just broken and wher e the evidenc e also shows that appellant ran when inte rrupted by the complainant and that appellant g ave conflicting and implausible e x planations for his a ctions. The

c u mu la ti v e f o r c e of all the incriminating circ umstances is sufficie nt to support appellant’ s convict io n
for a ttempted burg lary

of a ha bitation. See H

ooper , 214 S.W .3d at 13. 9

9 We take note o f some out-of-state case s that might support a decision that “entr y [i nto a habitation] alone is not suffi ci en t fo r a finding of intent for theft.” See, e.g., Commonwealth v. W ilamow s ki , 6 3 3 A.2d 141, 142-44 (Pa. 1993) (and case s cited) (af ter discussing conflicting decisions “holding t hat entry alone is not sufficie nt for a finding of i ntent fo r t heft” and decisions “holding an opposite conclusion,” stating that “we will not acc ept a per se assumption in attempted burg lary p ro s ec utions that evidenc e of a forc ed opening into an occupie d structure automatically g ives rise to an acc eptable infere nce of intent to commit a crime inside” and deciding that the evidenc e was insufficient to suppor t a n infere nce that the defe ndant possessed an intent to commit a crime inside a habitation whe re evidence showed that the defendant kicked a door, tore it off its hinge s and then walked awa y ); Commonwealth v. Jacobs , 3 7 2 A. 2 d 873, 874-76 (Pa. Super. Ct. 1977) (holding t hat “inte n t i o n al entry into an occupied buil ding is by itself insufficient to support an infe renc e of a

n intent to steal” and dec iding that e vidence was insuffic ient to support infere nce of defe ndant’s intent to steal wher e evidenc e showed that the defe ndant broke into an apar tment and was immediately

arr ested by a police office r who was inside the apa rtment conduc ting a

stakeout) (empha sis in orig inal); Gebhart v. State , 531 N.E.2d 211, 212 (I nd. 1988) (“Most rec ently , this court considere d the questi on raised here , namely the s ufficiency of t he evidence of intent to steal i n an attempted burg lary case , in Slaton v. State (1987), I nd., 510 N.E.2d 1343. Slaton, like appellant in this case , was scar ed off from a residenc e and fled, afte r having broken and havin g en t er ed, but befor e manifesting the nature of hi s unlawful purpose. Slaton used a knife and coatha ng er, while appellant used a tire tool. Slaton, howeve r, had enter ed and rummag ed about in a car outside befor e brea king and enter ing into the residenc e. I t was the evidenc e of that additional conduct in sear ching about in the car which broug ht the evidenc e of Slaton’s intent to steal to the sufficie ncy level. There is no such additional measure of evide nce he re.” ). I t appea rs, howeve r, that the majority rule, and one that is co n s i s t ent with our decision in Solis , is that a “jury

may infer the burg lary defe ndant’s intent to commit a crime from the f act that t h e d efendant forc ibly enter ed the home of another .” See 13 Am.J ur.2d § 21 pag es 237-38 , § 4 4 pag es 260-62 (2009); Solis , 5 8 9 S .W.2d at 446-47 (sug g esting that intent to steal m ay be inferre d from evidenc e that defe ndant attempted to enter a home befor e being interrupted by the h o meowner ); State v. Spikes , 961 A.2d 426, 436 (C o n n. App. Ct. 2008), appeal denied , 967 A.2d. 114 (Conn. 2009), cert. de nied , 130 S.Ct

. 249 (2009) (“I t is a basic principle of la w that common sense is not to be left at the courtroom door” and “[e]vidence that a defe ndant attempted to enter a dwelling forc ibly provides a rea sonable basis for t h e jury to infer the intent to commit theft”) ; Jacobs , 372 A.2d at 877-79 (Price, J ., dissenting) (discussing prior case law holding that “a jury could rea sonably infer an intent to commit larc eny when a defe ndant was caug ht in the act of brea king into anGea r–9
Thus the judgme nt of the court of appea ls is reve rsed, and the judgme nt of the trial court is
aff irmed.

Her vey , J

. Deliver ed: J une 15, 2011 Publis h

apar tment” and noting that this “appe ars to b e i n acc ordanc e with the view of a majority of jurisdictions which have decide d that an unexplained brea king and enter ing into a building is in itself sufficie nt to sustain a conviction for burg lary with the intent to commit larc eny ” beca use, in the absenc e of evidenc e of other intent or explanation for brea king and en t er i n g, “t h e usual object or purpose . . . is theft” ) (c iting 13 Am.Jur.2d § 52, p. 353 n.18 (1964)). I n any event, there is more evidenc e in this case than appellant’s attempting to enter the complainant’s home. There is the additional evidenc e of appellant’ s job l es sness, his lack of transporta tion and funds, his “implausible” and inco n s i s t ent ex planations for his conduct, and his flig ht upon being interrupted by the complainant.