COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-04-404-CR

THURMAN LEE HENDERSON	APPELLANT

	V.

THE STATE OF TEXAS	STATE

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	FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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	MEMORANDUM OPINION1

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I. Introduction

	Appellant Thurman Lee Henderson appeals his sixty-one-year sentence for burglary of a habitation.  In two points, appellant argues that the evidence is legally and factually insufficient to show that he entered the apartment without the effective consent of the owner.  We affirm.

II. Background Facts

	On July 15, 2003, Rose Tryon was sleeping on the couch when she heard a hard knock on the front door of the apartment.  Although she could not see who was at the door, she felt like it was appellant because he had been harassing her.  While he was knocking at the door, appellant said, “I know you are in there.”2  Rose then went into the kitchen to get the telephone to call 911 and took the telephone into the bathroom because she did not want appellant to hear her making the call.  After she had contacted the 911 dispatcher, Rose went out and saw that the door was shaking because appellant was hitting it, so she stood against the back of the door.

	Although the door had two locks, one being a deadbolt, appellant finally got the door to break open.  After getting the door open, appellant was not able to get inside the apartment because Rose was still holding the door, so he picked up a piece of the door frame that had broken off and began hitting Rose with it from the outside of the apartment through the space between the door and the frame.  Appellant then picked up a mop that was on the outside of the apartment and began swinging it inside the cracked door and hit Rose with it. When appellant finally got inside the apartment, Rose saw a butcher knife on a table.  When she picked it up, appellant ran out of the apartment.  Rose chased appellant downstairs, and he initially ran away.  But when Rose was knocking on a neighbor’s door, she turned around and saw appellant coming back towards her with what appeared to be a barbeque rack in one hand and another object in the other hand.  When some neighbors came outside, appellant ran off again.  Rose had injuries that included a knot on her forehead, a black eye, and injuries on her arm and wrist that she received when she was trying to block appellant from hitting her. 

	On August 17, 2004, the jury found appellant guilty of burglary of a habitation.  On August 18, the jury sentenced appellant to sixty-one years in the Institutional Division of the Texas Department of Criminal Justice after finding him guilty of the offense and answering true to the repeat offender notice.

III. Legal and Factual Sufficiency

	In two points, appellant complains that the evidence was legally and factually insufficient to show that he entered the apartment without the effective consent of the owner.  Specifically, appellant argues that he had the effective consent of Teresa Walker, the lessee of the apartment, to be in the apartment and that Rose did not have a greater right of possession than he did. 

A.  Standards of Review

	In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order 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, 319, 99 S. Ct. 2781, 2789 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).

	In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party.  See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004).  The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt.  Id. at 484.  There are two ways evidence may be factually insufficient:  (1) when the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment and, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484-85.  “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.”  Id. at 485.  In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt.  Id.  	In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses.  Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  We may not substitute our judgment for the fact finder’s.  Zuniga, 144 S.W.3d at 482.  

	A proper factual sufficiency review requires an examination of all the evidence.  Id. at 484, 486-87.  An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B.  Applicable Law

	Penal code section 30.02 defines the offense of burglary.  The pertinent part of section 30.02 states,

	(a) A person commits an offense, if, without the effective consent of the owner, the person: 

		(1) enters 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; or

		. . . . 

		(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.  

Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003).  Section 1.07 of the penal code defines “owner” as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.  Id. § 1.07(a)(35)(A) (Vernon Supp. 2005).  

C.  Analysis

	At the trial, Fort Worth Police Officer Michael Thomas Brown testified that he was dispatched on July 15, 2003 to the Joshua Cove Apartments for a domestic disturbance in which the complainant, Rose, reported that her ex- boyfriend was kicking the door.  He stated that he was the first officer to arrive at apartment 261 and got there at 4:47 p.m.  When he arrived, Rose was very upset and crying, but appellant was no longer at the apartment.  Officer Brown stated that he talked with Rose approximately ten to twenty minutes after the incident occurred and that she told him that her ex-boyfriend had kicked in the door and assaulted her with a mop handle.  While he was talking with Rose, Officer Brown noticed that she had a knot on the upper left side of her forehead and was holding her arm, complaining that she had pain in her wrist.

	After talking with Rose and getting a description of appellant’s clothing and the direction he was traveling, Officer Brown left the apartment and found appellant approximately two to three minutes later in a Church’s Chicken parking lot.  Appellant matched the description that Rose had given Officer Brown at the apartment.  When Officer Brown approached appellant, he noticed that appellant was out of breath, sweaty, and had paint chips in his hair.  After appellant gave Officer Brown a fraudulent name, Officer Brown took appellant back to the apartment, and Rose identified him as the man who broke into the apartment.

	Rose testified that she lived in the apartment for six to seven months with her brother, Ezelle Birmingham, and his common law wife, Teresa Walker, who is appellant’s sister.  She stated that she had dated appellant from March 2001 to June 2001 and that they had not had a good relationship since their breakup.  Rose testified that she went to Abilene for a while after the breakup but returned to Fort Worth in February 2002.  Rose stated that appellant never came over to the apartment when she was there and that he did not live there.  She told Officer Brown when he arrived that she lived in the apartment.  Rose stated that she continued to live in the apartment after the assault occurred until Teresa moved into another apartment complex.

	Teresa testified that neither Rose nor appellant lived in the apartment with her.  She stated that Rose did stay overnight about one to two times a month and that Rose would come over whenever Teresa needed a babysitter.  Teresa stated that appellant would come over to the apartment more than Rose, which would be about three times a week. 

	Teresa testified that appellant was mad because Rose broke up with him and that he wanted to get back together with her.  She said that in 2002, while she was at Ruby Haines’s (Rose’s mother) house with Rose, appellant came over to the house and knocked on the door for approximately five to six minutes asking to talk to Rose.  She stated that Ruby was so scared that she went and got her pistol and that appellant’s mother had to be called to come and get him.

	Teresa testified that she left the apartment with her children on July 15, 2003 and allowed Rose to stay and lie on the couch and watch TV.  She stated that Rose had permission to be in the apartment and that no one had permission to break into the apartment.  At the time of trial, Teresa still had some of Rose’s granddaughter’s clothes in her possession.  

	Ruby Haines, and Rose’s brother, James Tryon, testified that they would visit Rose at the apartment when she lived there with Teresa.  Ruby stated that she would pick up Rose at the apartment and take her to church and to the grocery store.  James testified that he would go to the apartment about once a week, and Ruby stated that she went to the apartment quite a bit.   

	Appellant argues that there are three reasons why the evidence is legally and factually insufficient to show that he entered the apartment without the effective consent of the owner.  He contends that he had Teresa’s consent to be at the apartment, that he qualified as an owner by virtue of his right of access to the apartment, and that Rose did not have a greater right to possession than he did to the apartment.

	We will initially address appellant’s first two contentions.  Although Teresa stated that appellant was welcome to come over to her apartment anytime, she testified that no one had permission to break into the apartment. The evidence shows that appellant entered the apartment by breaking down the door.  From Teresa’s own testimony, breaking down the door was not part of the consent that she had given appellant.  Further, there was no evidence that anyone but Teresa and Ezelle were the true tenants of the apartment.  Teresa and Rose both testified that appellant did not live there.  Additionally, appellant did not qualify as an owner.  As stated above, an owner is a person who has title to the property, possession of the property, or a greater right to possession of the property.  Tex. Penal Code Ann. § 1.07(a)(35)(A).  On July 15, appellant did not have title to the apartment or  possession of the apartment, nor did he have a greater right to possession than Rose, as we discuss below.  

	In his third argument, appellant addresses the issue of whether he had a greater right to possession of the apartment than Rose.  He asserts that the evidence is legally and factually insufficient because Rose did not have a greater right to possession of the apartment than he did.  Rose testified that she lived at the apartment for approximately six months and that she was living there when appellant broke into the apartment.  Ruby and James also testified that Rose lived at the apartment.  In fact, the only person to testify that Rose did not live at the apartment was appellant’s sister Teresa.  However, Teresa also stated that she did not want to see appellant get into trouble.

	We believe that the evidence is legally and factually sufficient to prove that Rose was living at the apartment when the burglary occurred.  Not only did three out of the four witnesses testify that Rose lived there at the time of the burglary, Rose also told Officer Brown when he arrived at the apartment that she lived there, and Teresa still had clothes that belonged to Rose and her granddaughter in her possession.

	Alternatively, even if the evidence was not sufficient to show that Rose was living at the apartment, we believe that the evidence proves that Rose had a greater right to possession of the apartment on July 15, 2003, than appellant.  Teresa testified that Rose had her permission to be in the apartment to lie down and watch TV that day.  Although appellant had Teresa’s consent to come over to the apartment anytime, on July 15, Rose had Teresa’s specific permission to be at the apartment.  Because we hold that the evidence shows that Rose had a greater right of possession on the date of the offense, appellant’s final argument is not persuasive.  

	We hold that the evidence, when viewed in the light most favorable to the verdict, supports a determination beyond a reasonable doubt that Rose had a greater right to possession of the apartment than appellant; therefore, we overrule appellant’s first point.  Additionally, when viewed neutrally, the evidence is not so obviously weak or so greatly outweighed by contrary proof that it would not support the finding of guilt beyond a reasonable doubt.  We overrule appellant’s second point.

IV. Conclusion

	Having overruled appellant’s two points, we affirm the trial court’s judgment.

							PER CURIAM

PANEL F:	LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH

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

DELIVERED: November 23, 2005