In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-15-00318-CR 

JESUS DOMINGUEZ MATA AKA JUAN JESUS MATA, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 64th District Court 

Hale County, Texas 

Trial Court No. A19754-1410, Honorable Robert W. Kinkaid, Jr., Presiding 

 

May 16, 2016 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Jesus Dominguez Mata aka Juan Jesus Mata (appellant) appeals his conviction 

for burglary of a habitation. Through two issues, he contends that 1) counsel was 

ineffective and 2) the evidence was insufficient to sustain his conviction. We affirm.

Background

Per the record, appellant was in the apartment of Alcoser, the apartment’s 

resident. Though he had previously resided there with her, she had asked him to leave 

about a month earlier. On the day of the burglary, Alcoser had returned from staying at 
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her daughter’s house, entered the abode, called her daughter, encountered someone 

shining a flashlight in her eyes while on the phone, began screaming, and felt a hand 

cover her mouth. The hand belonged to appellant. 

Hearing her mother’s screams, Alcoser’s daughter phoned 9-1-1, which, in turn, 

notified the police. Two officers arrived at the scene. The one who proceeded to the 

back door encountered appellant attempting to leave from it. However, appellant shut 

the door upon encountering the officer. The officer nevertheless proceeded inside and 

arrested appellant. A search of the latter person uncovered several pairs of ladies’

underwear and nail polish. Alcoser would later identify the items as hers and state that 

she had not given them to him. Alcoser would also state that she had not given 

appellant permission to be in the apartment at the time.

Other evidence revealed the presence of a pry bar in or near the kitchen sink 

which appellant had placed there before attempting to exit through the backdoor. Also 

found on or by the backdoor were pry marks and wood chips. 

Issue One – Ineffective Assistance

Appellant claims he received ineffective assistance of counsel because his trial 

attorney did not ask that the charge include the lesser included offense of criminal 

trespass. We overrule the issue.

The pertinent standard of review is well known and need not be repeated. It is 

enough to cite the parties to Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011). In 

Lopez, our Court of Criminal Appeals also stated that we “must make a ‘strong 

presumption that counsel’s performance fell within the wide range of reasonably 

professional assistance.’ In order for an appellate court to find that counsel was 
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ineffective, counsel’s deficiency must be affirmatively demonstrated in the trial record . . 

. . When such direct evidence is not available, we will assume that counsel had a 

strategy if any reasonably sound strategic motivation can be imagined.” Id. at 142-43, 

quoting, Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

The complaint at bar was not raised below. Thus, we have no evidence before 

us indicating why trial counsel did not request a lesser included instruction. Moreover, it 

has been recognized that the decision to forego an instruction on a lesser included 

offense may be sound or reasonable trial strategy. See Washington v. State, 417 S.W. 

3d 713, 726-27 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (stating that it may be 

a reasonable trial strategy to decide to not request a charge on a lesser included 

offense). Given these circumstances, we heed the admonishment in Lopez, assume 

that trial counsel’s conduct at bar was supported by reasonable trial strategy, and 

conclude that appellant failed to prove he received ineffective assistance of counsel.

Issue Two – Sufficiency of the Evidence

Next, appellant argues that the evidence of his guilt was insufficient because, 

among other things, 1) he previously lived in the apartment, 2) Alcoser had previously 

given his sister items of clothing that may or may not have included the panties and nail 

polish found on his person at the scene, and 3) he may have secured those items from 

his sister and opted to carry them around in memory of his relationship with Alcoser. 

We overrule the issue.

Appellant was indicted for “intentionally or knowingly enter[ing] a habitation, 

without the effective consent of . . . Alcoser . . . and attempt[ing] to commit or committed 

theft of property, to-wit: clothing, owned by . . . Alcoser.” See TEX. PENAL CODE ANN.
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§ 30.02(a)(1) (West 2011) (describing the elements of burglary). The pertinent standard 

of review applied in assessing whether the foregoing crime was proven is discussed in 

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). We refer the litigants to that 

discussion. 

The evidence we mentioned under the heading “background” was some 

evidence upon which a rational jury could conclude, beyond reasonable doubt, that 

appellant entered a habitation without the effective consent of the owner and attempted 

to or actually committed theft. Despite having lived in the apartment before, he was 

asked to leave a month prior to Alcoser’s discovery of his presence therein. The jury 

was free to believe Alcoser’s testimony that she had not given him permission to reenter 

the abode or take her underwear. It was also free to reject the notion that she had 

given the women’s underwear to appellant’s sister, and appellant just happened to like 

walking around with such items in memory of Alcoser. Therefore, the verdict has 

sufficient evidentiary support. 

We affirm the judgment. 

Brian Quinn

Chief Justice 

Do not publish.