In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-10-00051-CR

______________________________

FELIPE RUBIO GASPAR, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 336th Judicial District Court

Fannin County, Texas

Trial Court No. 22481

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley
2

MEMORANDUM OPINION

Felipe Rubio Gaspar was accused of entering the home of Noemi Jiminez, 1his 

ex-girlfriend,2 without the owner’s permission, and assaulting her current boyfriend, Pedro Noria 

Guzman, with a screwdriver. Gaspar was indicted on a charge of burglary of a habitation with 

intent to commit a felony, and he pled not guilty. After a jury trial, Gaspar was found guilty and 

sentenced to fifty years’ confinement3and assessed a $10,000.00 fine.4 

On appeal, Gaspar argues that there is legally and factually insufficient evidence to support 

the conviction and that the trial court erred in failing to allow a jury instruction on the lesserincluded offense of criminal trespass.5

We affirm the conviction because: (1) there is legally sufficient evidence to support the 

verdict; and (2) there is no evidence that Gaspar is guilty only of criminal trespass.

Under the authority of the very recent Brooks v. State opinion where a plurality of the 

Texas Court of Criminal Appeals abolished the separate factual sufficiency review, No. 

 

1Through the record and pleadings, Jiminez is also spelled, ―Jimenez.‖ In this opinion, we use the ―Jiminez‖ spelling. 

2There is testimony that Gaspar and Noemi once lived together as husband and wife. 

3The sentence was to run concurrently with his sentence in cause number 06-10-00050-CR.

4Gaspar was also assessed $686.00 in court costs.

5 With permission, Gaspar submitted one brief for the two appeals (cause numbers 06-10-00050-CR and 

06-10-00051-CR) he has pending before this Court. 
3

PD-0210-09, 2010 WL 3894613, at **1, 14 (Tex. Crim. App. Oct. 6, 2010), we do not address 

Gaspar’s challenge to the factual sufficiency of the evidence.6

The Jiminez property is located in Trenton, Fannin County, Texas, and consists of seven 

acres that are surrounded by a fence.7 Entry onto the property requires travel through a gateway 

that has a steel gate. The property has two trailer houses, one small one and a larger one. Noemi 

owned the smaller trailer and her father owned the land itself and the larger trailer home. 

Gaspar and Noemi Jiminez had an on-again, off-again relationship for several years. At 

times, Gaspar and Noemi would live together in Trenton, in the smaller trailer. Noemi would 

occasionally stay at her father’s trailer, but Gaspar never lived in the larger trailer. When their 

relationship finally ended,8 Gaspar moved out of the smaller trailer a few weeks prior to the 

incident. 

 

6

In the Brooks plurality opinion, the Texas Court of Criminal Appeals found ―no meaningful distinction between the 

Jackson v. Virginia legal-sufficiency standard and the Clewis v. State [922 S.W.2d 126 (Tex. Crim. App. 1996)],

factual-sufficiency standard, and these two standards have become indistinguishable.‖ Brooks v. State, 

No. PD-0210-09, 2010 WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010) (4-1-4 decision). Further, a proper 

application of the Jackson v. Virginia legal sufficiency standard is as exacting a standard as any factual sufficiency 

standard. See id. at *11. In a concurring opinion, Judge Cochran pointed out that the United States Supreme Court 

has rejected a legal sufficiency test that requires a finding that ―no evidence‖ supports the verdict because it affords 

inadequate protection against potential misapplication of the ―reasonable doubt‖ standard in criminal cases. Id. at *16 

(Cochran, J., concurring). Rather than meeting a mere ―no evidence‖ test, legal sufficiency is judged not by the 

quantity of evidence, but by the quality of the evidence and the level of certainty it engenders in the fact-finder’s 

mind. Id. at *17. Under the authority of Brooks, we do not address the defendant’s challenge to the factual 

sufficiency of the evidence. 

7The property is owned by Noemi’s father, Israel Jiminez.

8At the time of the incident, Gaspar’s brother, Inocente Gaspar, believed Gaspar and Noemi had reconciled, but he 

admitted that he had last seen Gaspar about a month prior to the incident. (Through the record, Inocente is also 

spelled ―Inocenti.‖ In this opinion, we use the ―Inocente‖ spelling.) 
4

After the relationship ended, Gaspar moved in with Jesus Perez, who lived within a mile of 

Noemi, who had begun a new romantic relationship with Guzman. Guzman, Noemi’s father, 

Israel Jiminez, and Noemi’s eleven-year-old son, Nelson Rodriguez, all testified that on the day of 

the alleged assault, Gaspar came to the Jiminez property, and confronted Guzman, warning him to 

leave Noemi alone and that Guzman would regret ―messing with‖ her.9 

After they both got off work, Perez and Gaspar traveled to a restaurant in nearby 

McKinney, Texas, and ―had a few drinks.‖ Upon returning to Perez’s home, Gaspar ―got on the 

phone and started arguing‖ with Noemi. Perez believed Gaspar was arguing about ―his kids, and

. . . somebody being there with her.‖ Gaspar indicated he was leaving because he had to ―go do 

something over there.‖ Gaspar invited Perez to go with him, but Perez declined, saying, ―I don’t 

want no problems.‖ Perez testified that Gaspar was drunk and angry that ―the other guy was 

down there.‖

At the time of the incident, Noemi was living in the larger trailer, and on that particular 

night, she, her four children, and Guzman were sleeping in one of the bedrooms, while her father 

and a few other family members were in the home’s other bedrooms. Shortly after midnight that 

night, Gaspar entered the large trailer home and assaulted Guzman, who was sleeping next to 

Noemi. Noemi and other family members tried to pull Gaspar off Guzman, but he ―got up and 

kept just going back after [Guzman].‖ When the two men struggled to the front door area, 

 

9Whether Perez was with Gaspar during the confrontation is disputed. Israel testified that Perez was there, while 

Perez denies any involvement. 
5

outside, and back into the living room, where the lights were turned on, Noemi noticed that 

Guzman was ―drenched in blood‖ and that Gaspar was holding a screwdriver. 

After the men were finally separated, Gaspar left the premises. Immediately after Gaspar 

left, Israel saw a car parked ―in front of‖ the locked gate. The driver started the car and drove 

away. 

Apparently, after Gaspar left the Jiminez premises, he returned to Perez’s home. Gaspar 

told him that he had ―wrecked the car‖ and asked Perez to help him hide it. Perez noticed that 

both the car and Gaspar were covered in blood, that one of the car’s tires was ―completely torn 

up,‖and that ―the fender was way beyond repair, couldn’t be fixed.‖

After a 9-1-1 call, Officer Ron Alexander arrived at the Jiminez residence and saw blood 

droplets on the wheelchair ramp outside the home, ―quite a bit of blood right there in the front of 

the door,‖ ―blood smeared all over the front door, all over the screen door, a pretty good amount of 

blood.‖ He testified that Guzman was lying on the floor, bleeding profusely, and that he appeared 

to have been stabbed several times. Guzman had thirteen puncture wounds to his body, head, and 

face. 

Shortly thereafter, the police arrived at Perez’s residence. Alexander noticed ―a little 

splatter of blood‖ on the glass of Perez’s front door. Inside Perez’s home, Alexander found 

Gaspar asleep, saw a screwdriver that matched Noemi’s description on the floor beneath Gaspar’s 

outstretched hand, and found a shirt and boots with blood on them. Gaspar was arrested and 
6

charged with burglary of a habitation with intent to commit another felony—aggravated assault 

with a deadly weapon. 

At trial, Gaspar requested a jury instruction on the lesser-included offense of criminal 

trespass, but the trial court denied his request. 

There Is Legally Sufficient Evidence to Support the Verdict

Gaspar was charged with burglary of a habitation with intent to commit a felony. The 

indictment, which tracks the applicable statutory language, alleges that Gaspar

did then and there intentionally or knowingly enter a habitation, without the 

effective consent of Noemi Isabel Jiminez, the owner thereof, and attempted to 

commit or committed the felony offense of Aggravated Assault with a Deadly 

Weapon. 

And it is further presented that the defendant used or exhibited a deadly 

weapon, to-wit: a screwdriver, during the commission of or immediate flight from 

said offense.

See TEX. PENAL CODE ANN. § 30.02(a) (Vernon 2003). On appeal, Gaspar argues that the 

evidence supporting his conviction is legally insufficient because the State failed to establish that 

Gaspar entered the Jiminez home without the effective consent of the owner. We disagree.

In reviewing the evidence for sufficiency, we consider 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, 

318–19 (1979). Based on the Brooks plurality’s description of the new application of legal 

sufficiency review under Jackson as ―rigorous‖ and its statement that the use by reviewing courts 
7

of the factual sufficiency standard in tandem with the legal sufficiency standard may have 

―skewed‖ the proper application of the Jackson standard, it appears that the high court is 

attempting to refocus the application of the legal sufficiency standard from the quantity to the 

quality of the evidence presented. See Brooks, 2010 WL 3894613, at **16–17 (Cochran, J.,

concurring).

The uncontroverted evidence establishes that Gaspar left Perez’s house, where he had been 

staying, and shortly after midnight, entered onto the Jiminez property, entered the large trailer 

where Noemi, Guzman, Israel, and their family were staying, and assaulted Guzman. 

While Gaspar used to live with Noemi in the smaller trailer, the evidence is undisputed that 

he moved out a few weeks prior to the events in question. Gaspar still had some belongings on 

the property, and prior to this incident, he would occasionally come by the property for dinner or to 

have his clothes laundered. Inocente Gaspar, Gaspar’s brother, testified that when Noemi and 

Gaspar lived together, they both had access to both trailers. However, Noemi and Israel testified 

that Gaspar had never lived in the large trailer, did not have keys to that trailer, and did not have 

permission to be anywhere on the property or in the large trailer that night. 

Sergeant George Robinson and Investigator Brett Martin testified that the door jamb to the 

home was ―busted‖ and that the door appeared to have been forced open. However, on crossexamination, Martin admitted that he did not know if the door had been damaged during the 

struggle, or whether the door had been broken down from the inside or the outside. 
8

At the time of the incident, the gate was locked, as Israel locked the gate every night at 

about 7:00 p.m. and prohibited anyone, be they guests or family, from entering the property after 

that time;

10 after that time, Israel would not even answer his door. Noemi noted that the rule was 

so strict that at times, Israel had locked her out of the property because she had arrived too late in 

the evening. 

Here, there is conflicting testimony regarding whether Gaspar damaged the lock and door 

in order to gain entry or whether they were damaged during the struggle. There is also conflicting 

evidence regarding the extent, if any, of Gaspar’s access to the Jiminez property, as well as the 

status of the relationship between he and Noemi at the time of the incident. The jury is the 

exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and 

reconciliation of conflicts in the evidence is within the exclusive province of the jury. Wyatt v. 

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. 

App. 1994). The jury may choose to believe some testimony and disbelieve other testimony. 

Wyatt, 23 S.W.3d at 30. Here, taking all the evidence into consideration, there is ample evidence 

to support the jury’s finding that Gaspar entered the Jiminez residence without the effective 

consent of the owner and assaulted or attempted to assault Guzman with a screwdriver. 

Therefore, the evidence is legally sufficient to support the verdict, and we overrule this point of 

error.

 

10Israel testified that it was 5:00 or 6:00 p.m.; however, Noemi testified that no one was allowed in after 7:00 p.m. 
9

There Is No Evidence that Gaspar Is Guilty of Only Criminal Trespass.

In his final point on appeal, Gaspar contends that the trial court erred by not including a 

criminal trespass instruction in the jury charge because it was a lesser-included offense of 

burglary. A defendant is entitled to a charge on a lesser-included offense if: (1) the offense is a 

lesser-included offense of the alleged offense, and (2) some evidence is adduced at trial to support 

such an instruction. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); De Vaughn v. 

State, 239 S.W.3d 351, 355 (Tex. App.—San Antonio 2007, pet. ref’d). 

Applying the first step of the analysis, here, Gaspar was charged with burglary of a 

habitation with intent to commit a felony, to-wit: aggravated assault with a deadly weapon. The 

elements of burglary of a habitation, as charged here, are: (1) Gaspar, (2) without the effective 

consent of the owner, (3) intentionally and knowingly, (4) entered a habitation, and (5) committed 

or attempted to commit aggravated assault with a deadly weapon.

11 See TEX. PENAL CODE ANN.

§ 30.02(a)(3) (Vernon 2003). The elements of criminal trespass are that: (1) Gaspar, 

(2) knowingly, intentionally, or recklessly, (3) entered or remained in a habitation, (4) without the 

effective consent of the owner, (5) having notice that entry was forbidden.

12 See TEX. PENAL 

CODE ANN. § 30.05(a) (Vernon 2003). The Texas Court of Criminal Appeals has already held 

 

11A person commits the offense of assault if that person intentionally or knowingly threatens another with imminent 

bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2) (Vernon Supp. 2010). Assault becomes aggravated assault if 

the person committing the assault uses or exhibits a deadly weapon during the commission of the assault. TEX.

PENAL CODE ANN. § 22.02(a)(2) (Vernon Supp. 2010).

12In Salazar v. State, 284 S.W.3d 874, 878 (Tex. Crim. App. 2009), the Texas Court of Criminal Appeals held that ―a 

habitation inherently provides notice that entry is forbidden.‖
10

that the offense of criminal trespass is a lesser-included offense of burglary. See Day v. State, 532 

S.W.2d 302, 306 (Tex. Crim. App. 1975). 

We next consider whether there was evidence adduced at trial that supported giving the 

instruction to the jury. See Hall, 225 S.W.3d at 536. A defendant is entitled to an instruction on 

a lesser-included offense if the proof for the charged offense includes the proof necessary to 

establish the lesser-included offense and there is some evidence in the record that would permit a 

jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included 

offense.13 Id.; Williams v. State, 796 S.W.2d 793, 799 (Tex. App.—San Antonio 1990, no pet.).

In this case, the evidence established that Gaspar entered the Jiminez residence without the 

owner’s consent and assaulted Guzman with a screwdriver. In contrast, there was no evidence 

supporting an alternative fact scenario wherein Gaspar entered the Jiminez residence, but did not 

commit or attempt to commit aggravated assault with a deadly weapon. See, e.g., Hampton v. 

State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (holding there must be some evidence directly 

pertaining to lesser-included offense for jury to consider before an instruction warranted). Gaspar 

points out that the screwdriver only had his blood and DNA on it, rather than Guzman’s. The lack 

 

13In making this determination, we must consider all the evidence introduced at trial, whether produced by the State or 

Gaspar. Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995). The credibility of the evidence and whether it 

conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a 

lesser-included offense should be given. Id.; Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). 

Anything more than a scintilla of evidence, even the defendant’s own testimony, is sufficient to entitle a defendant to 

a lesser charge. Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994); Hunter v. State, 647 S.W.2d 657 (Tex. 

Crim. App. 1983). If evidence from any source raises the factual possibility that the defendant is guilty of only the 

lesser-included offense, a charge on that offense must be included in the court’s charge. Penry, 903 S.W.2d at 755; 

Saunders, 840 S.W.2d at 391.
11

of Guzman’s blood on the screwdriver is evidence that that particular screwdriver may not have 

been the same screwdriver used in the assault. It is not evidence contradicting aggravated assault 

with a deadly weapon. Accordingly, there is no evidence in the record that would permit a jury to 

conclude that, if guilty, Gaspar was guilty only of the lesser-included offense of criminal trespass. 

Therefore, Gaspar was not entitled to an instruction on criminal trespass. We overrule this point 

of error.

We affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: October 6, 2010

Date Decided: November 5, 2010

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