COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00186-CR

TIMMY JAY TAMPLEN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Timmy Jay Tamplen appeals his conviction for burglary of a 

building.2 In two issues, Tamplen argues that the State failed to provide sufficient 

evidence at trial that he intended to commit a theft when he admittedly entered a 

building and removed scrap metal from it. We will affirm.

 

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

2See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).
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II. BACKGROUND

At trial, Jeffery Ward testified for the State. Ward owns land in Wise 

County, Texas, near Highway 114. Ward lived on the land before a fire burned 

down his house, his dad’s house, and his dad’s shop. All that was left standing 

after the fire was the burned shop. Ward testified that the shop contained burned 

tools and scrap metal. Ward also said that from the highway, it would appear 

that no one lived on the land. Even after the fire, Ward still collected his mail 

from the property, and on May 8, 2008, he went to his property to retrieve his 

mail on his way to pick up his daughter from school.

When Ward first arrived on his land, he could not see that someone else 

was there, but when he backed up to his mailbox, he saw the front of a red 

pickup truck near the shop. Ward immediately went to confront whoever was on 

his property because, by his account, no one else should have been there. Ward 

encountered Tamplen and another man. The other man was standing next to the 

truck, and Tamplen ―was inside the shop carrying stuff out.‖ At trial, Ward 

identified Tamplen as the man who had come out of his shop carrying scrap 

metal. Ward said that he confronted the two men. According to Ward, Tamplen 

said that he and the other man had been hired by Mr. and Mrs. Wright to help 

clean up the property and that they were intending to tear down the shop. By his 

own account, Ward responded angrily and then called 9-1-1. Ward described the 

location of Tamplen’s truck as being a place where you would park if you did not 

want to be seen from the highway. Ward testified that although he knew who the 
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Wrights were, he had never granted anyone permission to be on his property that 

contained the shop. Ward said that he was in the process of selling the scrap 

metal from the shop himself in an effort to raise money to rebuild his own home.

Deputy Richard Luke Campbell of the Wise County Sheriff’s office also 

testified for the State. Campbell responded to Ward’s 9-1-1 call. Campbell said 

that when he arrived, Ward was in his own vehicle and that Tamplen and another 

man were standing near Tamplen’s truck. Ward was visibly upset. Campbell 

described Tamplen’s behavior as ―constantly moving,‖ ‖twitching,‖ and ―evasive 

about answering questions.‖ Much like he had explained to Ward, Tamplen told 

Campbell that he had been on the property the evening before and that Mrs.

Wright had asked him to remove some items from the property. Campbell 

testified specifically about Tamplen’s explanation for having been on Ward’s 

property the day before: ―It didn’t make a whole lot of sense. I was trying to 

figure out why he had been out there the previous evening; that’s where his 

answers were evasive. He really couldn’t give an explanation for why he was out 

there the day before.‖ Because of Tamplen’s story, Campbell called Mrs. Wright. 

Campbell described his phone conversation with Mrs. Wright:

I basically asked her if she had given--given anybody permission to 

go onto that property? She said, no. That she had seen a guy out 

there the previous evening, who identified himself as Tim. And had 

asked him if he knew Mr. Ward? And she believed that he did know 

Mr. Ward. And she said that he hadn’t been there in a while, and 

was wanting to know if Mr. Ward needed some help leveling off a 

piece of the property?

. . .
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She explicitly said she did not give anybody permission to be out 

there?

Campbell said that after speaking with Mrs. Wright, he placed Tamplen under 

arrest.

The State called Sandra Kay Wright as well. Mrs. Wright testified that she 

barely knew Ward. Mrs. Wright said that she had been working with a nonprofit 

organization to help build homes destroyed by the same fire that had destroyed 

Ward’s home. She went to Ward’s land because she needed to speak with him. 

By her account, Mrs. Wright saw Tamplen on Ward’s property as she was driving 

by on May 7, 2008. She testified that she had assumed that Tamplen knew 

Ward or worked for him because Tamplen was on Ward’s property. According to 

Mrs. Wright, Tamplen was standing near the site of Ward’s former house, so she 

approached Tamplen and asked if he knew Ward. Mrs. Wright said that Tamplen 

affirmatively gestured that he did know Ward. Mrs. Wright told Tamplen that she 

was trying to reach Ward. During her conversation with Tamplen, Mrs. Wright

told Tamplen that she needed to speak to Ward about the nonprofit organization 

preparing the foundation site for his new home. She gave Tamplen her phone 

number and asked him to have Ward call her about the foundation site. Mrs.

Wright denied ever giving Tamplen permission to enter Ward’s property or to 

remove anything from the shop. She testified that she had assumed that

Tamplen had Ward’s permission to be on his property because he was there 
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when she arrived. Mrs. Wright also testified that Tamplen never gave her his 

own phone number.

Douglas Lee Wright—another State’s witness and Mrs. Wright’s 

husband—testified that the Wrights lived within two miles of Ward’s property and 

that the first time he had heard of Mrs. Wright’s conversation with Tamplen was 

when Campbell called his home on May 8, 2008. The Wrights’ home was also 

destroyed by the fire. Mr. Wright said that he had never met Tamplen, did not 

hire him to clean up Ward’s property, and had no authority from Ward to give 

anyone permission to enter his property.

Tamplen testified on his own behalf. According to Tamplen, Mrs. Wright 

approached him on May 7, 2008, introduced herself, and asked ―if [he] could be 

out there the next day.‖ Tamplen said that he believed Mrs. Wright owned the 

property and that she had employed him to clear the land. Tamplen said that 

Mrs. Wright asked him to come back with a trailer so that he could haul off debris 

and tear down the burned shop. Tamplen said that he gave her his ―card,‖ which 

contained his telephone number. Tamplen averred that after renting a trailer, he 

and his brother returned the next day to clean the property and then Ward 

arrived, angry and yelling. Tamplen said that he tried to explain to Ward that 

Mrs. Wright had hired him, that Ward would not listen, and that Ward called 

Campbell, who arrived shortly and arrested Tamplen. The jury found Tamplen 

guilty and assessed punishment at ten years’ incarceration and a $500 fine. This 

appeal followed.
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III. DISCUSSION

In two points, Tamplen challenges the sufficiency of the evidence to 

support his conviction. Tamplen does not dispute that he entered Ward’s 

property or that he removed scrap metal from the shop and loaded it onto a truck 

and trailer; Tamplen contends only that the evidence is insufficient to prove that 

he intended to commit a theft. We disagree.

A. Standard of Review

Although Tamplen challenges both the legal and factual sufficiency of the 

evidence to support the conclusion that he entered Ward’s shop with the intent to

steal the scrap metal found inside, the court of criminal appeals has held that 

there is no meaningful distinction between the legal sufficiency standard and the 

factual sufficiency standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. 

App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 

1996)). Thus, the Jackson standard, which is explained below, is the ―only 

standard that a reviewing court should apply in determining whether the evidence 

is sufficient to support each element of a criminal offense that the State is 

required to prove beyond a reasonable doubt.‖ Id. Accordingly, we will apply this

same standard of review to both of Tamplen’s sufficiency complaints.

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 

prosecution to determine whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 
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443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 

772, 778 (Tex. Crim. App. 2007).

This standard gives full play to the responsibility of the trier of fact to 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. 

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the 

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), 

cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary 

sufficiency review, we may not re-evaluate the weight and credibility of the 

evidence and substitute our judgment for that of the factfinder. Williams v. State, 

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether 

the necessary inferences are reasonable based upon the combined and 

cumulative force of all the evidence when viewed in the light most favorable to 

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We 

must presume that the factfinder resolved any conflicting inferences in favor of 

the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. 

at 2793; Clayton, 235 S.W.3d at 778.

The sufficiency of the evidence should be measured by the elements of the 

offense as defined by the hypothetically correct jury charge for the case, not the 

charge actually given. Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App. 

2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a 
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charge is one that accurately sets out the law, is authorized by the indictment, 

does not unnecessarily restrict the State=s theories of liability, and adequately 

describes the particular offense for which the defendant was tried. Villarreal v. 

State, 286 S.W.3d 321, 327 (Tex. Crim. App.), cert. denied, 130 S. Ct. 515 

(2009); Malik, 953 S.W.2d at 240. However, we may not affirm a conviction 

based on legal or factual grounds that were not submitted to the jury. Malik, 953 

S.W.2d at 238 n.3. The law as authorized by the indictment means the statutory 

elements of the charged offense as modified by the factual details and legal 

theories contained in the charging instrument. See Curry v. State, 30 S.W.3d 

394, 404–05 (Tex. Crim. App. 2000).

B. Intent to Commit a Theft

It is well settled in this state that the question of the intent with which a 

person unlawfully enters a building is a fact question for the jury to be drawn from 

the surrounding circumstances. Moreno v. State, 702 S.W.2d 636, 641 (Tex. 

Crim. App. 1986); Stearn v. State, 571 S.W.2d 177, 177 (Tex. Crim. App. [Panel 

Op.] 1978) (holding evidence of intent to commit theft sufficient when defendant 

was found in residence’s kitchen and immediately fled, even though nothing in 

house had been disturbed). That is, the jury is exclusively empowered to 

determine the issue of intent, and the events of a burglary may imply the intent 

with which the burglar entered the property at issue. Moreno, 702 S.W.2d at 

641; Joseph v. State, 679 S.W.2d 728, 730 (Tex. App.—Houston [1st Dist.] 1984, 

no pet.).
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In this case, when considering the evidence in the light most favorable to 

the jury’s verdict, the record demonstrates that Tamplen did not have Ward’s 

permission to be on his property. Mrs. Wright, the person whom Tamplen claims 

gave him permission to be on Ward’s property, testified that she did not give him 

permission to be on the property and that Tamplen falsely represented to her that 

he knew Ward the day before Ward discovered Tamplen on the property. She 

also testified, contrary to Tamplen, that he had not given her his contact 

information. The evidence also shows that Tamplen parked his truck and trailer 

in a place consistent with a person who was trying to keep his presence on the 

property hidden. Ward witnessed Tamplen loading Ward’s property on 

Tamplen’s trailer and truck. Moreover, Tamplen admitted entering Ward’s 

property and loading the scrap metal. And Campbell testified that Tamplen could 

not explain why he was on Ward’s property the day before.

We conclude and hold that a rational factfinder could have found that 

Tamplen intended to commit the theft of removing scrap metal from the shop on 

Ward’s property and that a rational factfinder was free to disbelieve Tamplen’s 

story that he believed that he had been hired to remove the property from the 

shop. See James v. State, 48 S.W.3d 482, 487 (Tex. App.—Houston [14th Dist.] 

2001, no pet.) (holding that whether a defendant’s explanation regarding his 

possession of stolen property is reasonable or false is an issue to be decided by 

the factfinder); see also Roane v. State, 959 S.W.2d 387, 389 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d) (reasoning that a jury is empowered to 
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determine the issue of intent in prosecution for attempted burglary of habitation). 

Thus, we overrule both of Tamplen’s issues.

IV. CONCLUSION

Having overruled both of Tamplen’s issues, we affirm the trial court’s 

judgment.

BILL MEIER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH

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

DELIVERED: April 28, 2011