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

NO. 03-13-00547- CR

Richard Cart rell Haynes, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NO. D-1 -DC- 12- 2051 44, H ONO RAB LE JO N N. WI SSER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Richard Cartre ll Ha

y nes was char g ed with bur g lary of a habitation. See Tex. Pena l
Co d e § 3 0

. 0 2 ( a ) ( p r o h ib it in g c r im e o f b u r g la r y ) , ( c ) ( 2 ) ( s e tt in g o f

f e n s e le v e l f

o r b u r g la r y o f h a b it a ti o n )

. After a trial, the jury found Hay nes gu i l t y o f t he char g ed offe nse. Subsequently , Hay nes pleade d
true to 2 felony -enha

nceme nt all egations, and the district court imposed a sentenc e of 30 y ear s’ imprisonment. See id. § 12.42 (ele vating permissible punishment rang e f or repe at-fe lony offe nders)

. Hay nes appe als his conviction, and we will affirm the district c ourt’s judg ment of convic tion.

DISCUSSIO N On appea l, Hay

nes contends that the evidenc e was insufficient to show that the
structure that he entered was a habitation. I n particula r, he a rg ues that there was no proof that the
structure was adapte d “for overnig ht acc ommodation of persons.” When making this ar gument, Hay nes notes that no evidenc e was introduced showing that the structure had bedrooms, a kitchen,or household furnishing s. Acc ording ly , he asks this Court to ref orm h i s j u d gm en t to ref

lect a conviction for the lesser- included off ense of burg lary of a building or of c riminal trespass. Under the Penal Code, an individual comm its burg lary “if, without the eff ective
consent of the owner , the person . . . enter s a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony , theft, or an assault.” Tex. P enal Code § 30.02(a) (1). As mentioned above, Hay nes does not cha l l en ge the sufficie ncy of the evidenc e showing that he enter ed a structure with the intent to commit thef t; on the contra

ry , he only asser

ts
t h at t h e ev idence was insufficient to show that the structure was a habitation. The Penal C o d e define s “[h] abitation” as “a structure or vehicle that is adapte d for the overnig ht acc ommodation of
persons, and includes: (A) eac h separ ately secur ed or occupie d portion of the structure or vehicle; and (B ) eac h structure appurte nant to or connec ted with the structure or vehicle.” Id

. § 3 0

. 01(1).
A deter mination reg arding whether a particula r structure is suitable for overnig ht acc ommodations involves complex and subjective fac t q uestions, which are well-suited for resolution by juries. Salazar v

. State , 284 S.W .3d 874, 877 (Tex. Crim. App. 2009). When ma king this de termination, juries m ay consider “the ty pe of structure ,” “its ty

pical use,” and its contents, “including bedding, elec tricity , plumbing, or furniture .” Id. The jury may also consider “whethe r som eone was usi ng the structure . . . as a r esidenc e at the time of the offe nse.” Blankenship v. State , 780 S.W .2d 198, 209 (Tex. Crim. App. 1989) (op. on re h’g ).

I n a leg al-suff

iciency revie w, appellate courts view the evidenc e in the light most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979)

. W h en p er fo rming this analy sis, a revie wing court must bear in mind that it is the fac t2finder’ s duty to weig h the evidence, to resolve conf l i ct s i n t he testi mony , and to make reasona ble infere nces “fr om basic fac ts to ultimate fac ts.” Id. Fur thermore , revie wing courts must “dete rmine whether the nece ssary infere nces are rea sonable based upon the combined and cumulative forc e of

a ll th e e v id e n c e w h e n v ie w e d in th e li g h t mo s t f a v o r a b le to th e v e r d ic t. ” H

o o p e r v
. S ta te , 2 1 4 S. W. 3 d
9 , 16-17 (Tex. Crim. App. 2007). Moreove r, revie wing courts presume that conflicting infere nces

wer e resolved in favor of the conviction and defe r to that resolution. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

The structure at issue is a h o me owned by J ohn Waltrip. During the trial, Waltrip explained that he h as lived in the home since 2007 and continued to live in the home afte r the incident. Fur

ther, h e rela ted that althoug h he was not prese nt at the time of the alleg ed offe nse beca use he spent the night at his g irlfriend’ s house, he was h o m e t h e d ay befor e. I n addition, he stated that his home had a working alar m sy stem. Fur

ther, when desc ri b i n g the damag e that had been done , Waltrip mentioned that his home had a laundr y room. I n ad d i t ion to the testimony from Waltrip, the State admitted pictures of the home as exhibi ts. Those pictures reve al that the structure was a singl e-family home with a brick exterior, a roo f, a l au n d ry room, an attache d g ara g e, and a paved drivewa y . See Jones v. State , 1

I n his brief, Hay

nes cites Chandler v. State for the proposition that a structure ’s outside 1 appea ranc e is irr eleva

nt. 743 S.W .2d 736, 738 (Tex. App.—Corpus Christi 1987) (“ Chandler I ”). Howeve r, we find Hay

nes’s relianc e on this case misplaced. On appea l, tha t opinion was reve rsed b y th e c o u

r t o f c r im in a l a

p p e a ls

. Ch a n d

ler v. State , 79 0 S. W. 2 d 6 3 5 ( T e x. Cr im

. A p p . 1 9 9 0 )

. M o r e o v e r , the court of criminal appea ls noted that the primary prec edent relied on in Chandler I had rec ently been overr

uled and that a new “standa rd for deter

mining sufficie ncy of the evidenc e to show a structure is a habitation” had been established. Id. at 635 (noting that Jones v. State , 532 S.W .2d 596 (Tex. Crim. App. 1976), was overruled by Blankenship v. State , 780 S.W .2d 198 (Tex. Crim. App. 1989) (op. on reh’ g )); see also Bl a n ke n s hip , 780 S.W .2d at 209 (authorizing consideration of ty pe of structure “(e

. g. h o u s e, apar tment, condominium

. . . )” when deciding if structure is acc ommodation). 3No. 01-09-00267- CR, 2010 T ex . Ap p. L EXI S 10279, at *15 (Tex. App.—Houston [1st Dist.]

Dec

. 30, 2010, no pet.) (mem. op., not desig nated for publication) (co ncluding that structure was habitatio n af

t er considering , among other evidenc e, photos showing “that the house was a fully -enc losed, brick, on e- s t o ry , single -fa mily dwelling with a roof, a paved drivewa y , and an attache d g ara g e” and explaining that singl e- fa m ily residenc es are intended to be used to

acc ommodate people overnig ht); cf. Hicks v. S t a t e , 2 0 4 S.W .3d 505, 507 (Tex. App.—Amar illo 2006, no pet.) (mem. op.) (dete rmining that “minimal evidenc e cited by ” d ef en d ant would not have permitted “a rational fac tfinder t o co n cl u d e that

. . . [st ructure ] was only a building and not

a habitation” when evidenc e showed that structure was desig ned to be lived in, was wired for el ec t ri city , had running water and g as, had kitchen and bathroom, and had appliance s and n o t i n g that “no other evidenc e appea rs of rec ord sug g esting that the structure lacke d t h e s t atus as a habitation”). Moreove r, the pictures se em to de pict that the structure was fully enclose d. Fur ther, the pictures show that the home contained appliance s, clothing, a bicy cle, tools, an d cl eaning

s upplies. I n addition, the photos demonstrate that the home had working elec tricit y b ec au s e an exterior light is illumi nated in sever al of the photos. Cf. In re E.P. , 963 S.W .2d 1 9 1 , 1 9 2 (T ex. App.—Austin 1998, no pet.) (conc luding that eviden ce wa s sufficie nt to show that vaca nt unit

wa s h abitation when evidenc e showed, among other things, that apar tment was surrounde d b y other units and had running elec tricity and water ). Fur thermore , a video from the dashboar d came ra of one of t he responding office rs was admitted as an ex hibit, and that video depicts the hom e in a residential ne ighbor

hood with acc ompany ing bike lanes. 2

As support for his asser

tion that the evidenc e was insufficient to support his conviction, 2 Hay nes primar ily

relies on Moss v. Stat e , 574 S.W .2d 542 (Tex. Crim. App. 1978). Howeve r, we 4I n light of all of the evidenc e summarized above as well as the rea sonable infere nces

that the fac t-finder could have made from that evidenc e and g iven that t h e standard of revie w for leg al-suff iciency challeng es obliga tes appellate courts to defe r to the fact -f i n d er’s resolution of conflicts in the testimony and to r eview the evidenc e in the light most fa vorable to the verdic t, see Jack son , 443 U.S. at 319; Cla yt o n , 2 35 S.W .3d at 778; Hooper , 214 S.W .3d at 16-17, we cannot conclude that the evidenc e was leg ally insufficient to support the ju ry ’s d et er mination that the
structure was a

habitation. Acc ording ly , we ove rrule H ay nes’s issue on a

ppeal.

CONCLUSION Having overr

uled Hay nes’s issue on appea l, we aff irm the district court’s judgme nt of convic tion.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: September

16, 2014 Do Not Publish

find Moss to be distinguishable from the circ umstances prese nt in this case . I n Moss , the structure at issue had not been occupie d for sever al months and had n o ru n n i n g water

. Id. at 544-45. I n addition, there was evidence showing that the s tructure had no light bulbs and that the “s t ove and heate rs wer e not connec ted.” Id. at 545. Moreove r, the owner of the proper ty testified that the items that wer e in the house wer e there “for storag e only , and that in order to rent the house she would have ha d to move them out and install other furniture and applianc es.” Id. 5