## NO. 12

- 23

- 00237

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

TYLER DE ’ SHUNTA SMITH , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ AP PEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Appellant, Tyler De ’ Shunta Sm it h, appeals his conviction for burglary of a habitation. In one issue, he challenges the sufficiency of the evidence to support the jury ’ s verdict. We affirm

.

B ACKGROUND

In the early hours of Feb ruary 1 4 , 2022, Officer Zach Allen of the Li ndale P oli ce Depar tment was dispatched to Cedar Knoll Apartments in Lindale, Texas, in relation to a
criminal trespass

. When he arrived, Allen encounter ed Kaicee Williams, who was bleeding from
the area o f her ear. Williams stated that Appellant , her ex

- boyfriend, str uck he r about th e head and caught her ear with his fingernail , but he was no longer present. L a w enforcement obtained a warrant for Appell ant ’ s arrest for the offense of burglary of a habitation and executed the

warrant on March 25, 2022

. Appel lant pl ea ded “ not guilty, ” a nd this matter proceeded to a jury
trial.
Williams ’ s Testimony
Williams testified that she and her daughter moved into the Cedar Knoll Apartments
residence in August of 2020. S he and Appellant were dating, but his name was never liste d on
t he lea se becaus e of his “ previous history. ” T he property manager initially cons ented to2 Appellant ’s presence , and one of the uti lity bil ls was initially in Appellant ’ s name

. I n December 2020, management requested a criminal trespass warn ing against Appella nt bar ri ng him f r om the premises

. 1 Williams stated that Appellant did not reside at the a partment thereafter, although she
occasionall y permitted him to stay wi th her for no more than two days at a time

. At an unspecified time in 2021, law enforc ement resp onded to the ap a r tment for criminal trespass by Appellant but did not arrest him

. Williams testified that she took Appellant ’ s name off the
electri city bill after this incident.
Williams stated that on the night of the charged offense , she recei ved a ride back t o her

apar tment from a Super Bowl party

. Appellant was sit ting in the parking a rea in his car , una b le to go inside because he did not have a key

. Williams gave Appellant money for gas to return to
h is residence and Appellant drov e away. Shortly t here after, Willi ams exited the apartment to take her dog outside and failed to lock the door

. While Williams was still outdoors , App e llant drove back into the parking lot, ran into the apartment , and locked the do or behind him

. From
the ki t chen window, William s saw Appell ant perusing her personal items and taking objects , including a credit card, her cell phone charger, and a pocketkni fe

. Williams called the police while standing in front of the apartment door

. Subs equently, Ap pellant opene d t h e door a nd
immedi ately “ p ushed [W illiams] back, ” then either slapped or punched her “ to move [her] out of the way. ” During the alter cation, Ap pellant swung the knife at Williams and cut her ear , after which Appellant left the premises

. Whe n the police ar rived , Wil liams sai d that s he wishe d to press charges for the criminal trespass , but not as sault

. At the end of February 2022, Williams
moved to a different apartment loca ted in Tyler, Texas

. Appellant helped her move, but did not

move there with her bec ause they agreed t o e nd the ir relatio nship. Subsequently , on March 25 , 2022, Appellant showed up at the Tyler apartment and demanded entry

. W illiams called law
enforcement , who subsequently arrested Appellant in connection wit h the events of February 14. Appellant ’ s Testimo ny Appell ant testif ied that when he and Williams moved into the Cedar Kno ll apartm ent in August 2020, he paid all the bills , but was not on the lease because he was on parole from a past
robber y conviction

. Appellant initially had a ke y to the apartment bu t even tually mis placed it
and never got a nother

. The original criminal t re spass arose from a “ petty ” disa greement between

1 Officer Carlos Flores of th e Li ndale P olic e Department testified that on December 18, 2020, at the r eque st of the management of Ceda r Knoll Apartments , he issued a criminal trespass war n ing agai nst App ellant instructin g hi m not to return to the premises

.3 himself and Williams about a telev ision

. Appellant stated that he left for only a couple of hours
af

ter this in cident. Following the s econd criminal t respass in cident, Appellant left the residence for approximately one day, after which Williams invited h im back to the apartment and everyt hing went “ back to normal. ” Appellant also gave his version of the events t hat occurred on the night of Feb ruary 13,
2022. He explained that he was waiting in his car in the parking lot since he did not have a key , and o nce Williams arrived, he followed he r into the apartment

. Williams accused him of
in fide li ty, and the t wo beg an arguing. Appellant packed his p ersonal be longing s and attempted to leave, but Williams stepped in front of him to block him from leaving the b edroom

. Appellant

“ pushed her back ” an d entered the living room , after which Williams hit him fro m behind and

ca used him to drop some items he wa s carrying

. A “ physical altercation ” ensued, during which Appellant ejected Williams fr om the apartment and l ocked t he door

. Appellant opened the door
when he heard Williams threat en to call the police ; w hen s he entered , Willia ms attem pted to
strike A ppella nt

. Appell ant testified that he attempted to step back or brace himself, but

“ reacte d ” by hitting her, whi ch caused the scratch on Williams ’ s ear. H e then ran outs ide to his
car and left the premises

. He stated that h e and Williams did not physically fight in the pa rking
lot a t any point, and he de nied having or usi ng a knife at any point during the incident

. Appellant returned to the Cedar Knoll apartment the fol lowing evening and lived there with
Williams until th e end of February, when the two move d to T yler toget her

. Appellant testified
that he was “ at home ” at the Tyler apartment when arrested in conne ction with the charged
offense , a nd re turned there with Williams after she bailed him out of jail. The jury fo u nd Appellant “ guilty ” of the c harged offens e and asse ssed punishment of five

years ’ impris onment. This appeal followed.

S U FFICIENCY OF THE E VID ENCE In his sole issue, Appellant argues t ha t the e vid ence wa s legally insufficient to support a finding that h e ente red a habitation without t he eff ective consent o f the owner, as required for the
offen se of burglary of a habitation

. 2

2 Appellant additionally arg ues that the ev idence was legally insufficient to support a finding that he i ntended to commit an a ssault before entering the apartment

. However, t he indictm ent in th is case alleges that Appe llan t “ attempted to commit or committed an assault against Kaice e Williams , ” an d conta ins no allegations4 Standard of Review a nd Applicable Law

The Jackson v. Virginia legal suf ficiency standard is the only standard that a reviewing

cour t should apply in determining whe ther the evi dence is s ufficient to support eac h element of a criminal offense that the state is required to prov e beyond a reasonable doubt. See Brooks v.
State , 3 23 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficien cy is the constitutional
minimum re quire d by th e Due Proc ess Clause of the Fourte enth Amendmen t to sustain a
criminal conviction. See Jackson v. Virginia , 4 43 U.S. 307, 315

– 16, 99 S. Ct. 2781, 2786

– 87,
61 L. Ed . 2d 560 (1979 ). The standard for reviewing a legal su ff ic iency challenge is whether any

rat ional trier of fact co uld have found the essential elements of the offense beyond a reasonable
do ubt. See Ja ckson , 443 U.S. at 320, 99 S. Ct. at 2789; see also Joh nson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 199 3 ). The evidence is examined in the li ght m ost fav orable to the
verdict. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; Johnson , 8 71 S.W.2d at 186. A jury is free to believe all or any part of a witn ess ’ s testimony or disbelieve all or any part of that

t estimony. See Lee v. State , 176 S.W.3d 452, 458 (T ex. App.

– H ouston [1st Dist.] 2004), aff ’ d , 206 S.W.3d 620 (Tex. Crim. App. 2006) . A success ful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Fl or ida , 457 U.S. 31, 41

– 42, 102
S. Ct. 22 11, 2 217

– 18, 72 L. Ed. 2d 652 (1982).
Circumstantial eviden ce is as probative as direct evi dence in est ablishing guilt, and
circumstantial evidence alone can be su fficient to establish guilt. Rodriguez v. State , 5 21
S. W.3d 822, 827 (Tex. App.

– Houston [1st Dist. ] 2017, no pet.) (citing Sorrells v. State , 343
S.W.3d 152, 155 (Tex. Crim. App. 2011 )). Each fa ct need not point directly and independently to the guilt of t he appellant, as long as the cumulative force of al l th e incriminating
circumstances is suffi cient to sup port the c onviction. See Hooper v. State , 214 S .W.3d 9, 13 (Tex. Crim. App. 2007). Juri es are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence pr esente d at trial. Id. at 15. An inference is a

co nclusio n reached by considering other facts and deduci ng a logical consequence f ro m them,
wh ile speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. a t 16.

regarding Appellant ’ s intent. A c onvi ction for burglary of a habi tation may rest o n a finding that the person charge d, having entere d the hab itation wi thou t effective consent of the owner, attempted to commit or co mmitted an

assa ult therein

. See T EX

. P ENAL C ODE A NN

. § 30.02(a)( 3 ) (West 20 23)

.5 The sufficiency of the evidence is measur ed ag ainst t he offense (s) as defined by a hypothetically co rrect jury charge. See M a lik v. Stat e , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically corr ect jury charge “accurately sets out the l aw , is authorized by the indictment, does not unnec essar ily inc rease the State ’ s burden of proof or unnecessar ily restrict
the State ’ s theories o f liability, and adequately describes the particular offense for whic h the
defendant is tried.” Id

. As is per ti nent to this case, a person commits th e off ense of burglary of
a habitation if he enters a habita tion without the effective consent of the owne r and commits or attempts to commit an assault. T EX

. P ENAL C ODE A NN

. § 30.02(a)( 3 ) (West 2023).
A nalysis Appell ant contends that because he w as a resident of the Cedar Knol l apartment , he could

not have entere d the habitation without the owne r ’ s consent

. However, Appellant ’ s purported
status as a resident of the apartment does not shield him from pr osecution for b urglary under
Te xas law. The Texas Penal Code define s “owner ” as a person who “ has title to the pro perty, possession of the proper ty, whether lawful or not, or a greater right to possession of the proper ty than the actor [.]” T EX

. P ENAL C ODE A NN

. § 1.07 (35 ) (West 2023 )

. Texas courts apply the “greater right to possess ion ” doctrine to pro secutions for bur glary ; a defendant who has som e , but less, right to control a habitation than the alleged owner may ther e fore be prosecuted for burgl ar y of that habitation

. Morgan v. State , 501 S.W.3d 84, 91 (Tex. Crim . App. 2016)

. I n Morgan , the Texas Court of Criminal A ppeals held that although the defendant l ived with his girl friend in her apartment, because she paid the rent and was the only one named in the lease, she had a greater right to possession and was the “ owner” of the apa rtment. Id. Consequently , the defenda nt was subject to prosecutio n for burgla ry of his girlfriend ’ s apartment. See id. ; see a ls o Aldana v. St ate , No. 04

- 18

- 00369

- CR, 2018 WL 6331025, at *2 (Tex. App.

— San Antonio Dec. 5, 2018 , no pet. ) (mem . op. , not desig nated for pub lication) (apartment res ident ’ s boyfriend , who was n ot signator y to the lease and did not have a key, had lesser right to possession than resident girlfriend ). Similarly, i n t his case, the evidence supports a
fin ding that Will iams ha d a greate r right to possession of the apartmen t than Appellant. Both
Wil liams and A ppellant tes tified that only Williams ’ s name was on the lease , and Appellant did not have a key to the apartmen t. Williams testified that Appellant only occasionally s tayed at the

ap artment overnight following the initi al criminal tre spass in D ecember 202 0, but did not resume a permanent residence there

. As sole judge of the witness es ’ credibility , t he jury was ent itled to6 believe Williams ’ s recounting of events over Appella nt ’ s contr ary account

. See Lee v. State , 176
S.W.3d 452, 458 (Tex. App

. – Houston [ 1st Dist.] 2004)

. Although the evidence suggests Appellant ’ s name may have been attached to the e lectricity u til ity ac count for s everal months,
this factor would not gr ant him equal or greater ownership rights to the apartment than the rights
h el d by Will iams

. Therefore, based on the applicable law and evidence, we hold that the jury could reasonably infer either t hat Appellant did not have a ny right to possess th e apart ment, o r that Wil liams ’ s right to possess the apartment as the “ owner ” was greater tha n Appellant ’ s , and
that Appellant was subject to prosecution for burglary

. We overrule Appellant ’ s sole i ssue.

D ISPOSITION Having overruled Appellant ’ s sole issue, we af firm the judgment of the t rial court.

G REG N EELEY Justice
Opinion delive red May 8 , 2024. Panel consisted o f Worthen, C.J., Hoyle, J., and Neeley, J.

## COURT OF APPEALS

TW ELFTH COURT OF APPEALS DISTRIC T OF TEXAS

J UDGMENT

MA Y 8, 2024

NO

. 12-23-00237- CR

T YLER DE'SHUNTA SMIT H, Appell ant V. THE STATE OF TEXAS , Appellee

A ppeal from the 7th District Court
of Smith County, Te xas (Tr.Ct.No. 007-2174-22) THIS CAUSE came to be heard on the appella te record and briefs filed herein, and the same being considered, it is the opinion o f this co urt that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREE D that the judg ment of the court below be in all things affirmed , and tha t this decision be certif ied to the court
below for observance.
G reg Neeley , Justice. Panel co nsi sted of Worthe n, C.J., H oyle , J., and Neeley, J.