Opinion issued December 10, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00844-CR
SIMON CHAMBERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1098972
MEMORANDUM OPINION
The State charged appellant Simon Chambers with the felony offense of burglary of a habitation. See Tex. Penal Code Ann. §§ 30.02, 12.33 (Vernon 2003). A jury found Chambers guilty of the crime as charged and found each enhancement paragraph alleging two earlier burglary convictions true, and it assessed punishment at fifty years’ confinement. Chambers challenges the legal and factual sufficiency of the evidence supporting his conviction for burglary of a habitation. We conclude that the evidence is legally and factually sufficient to support the jury’s findings, and therefore affirm.
Background
On January 4, 2007, Gregory Roberts left his apartment around 4:00 a.m. to report for work. Roberts had lived at this location for more than four years, without a written lease agreement, but paid monthly rent. Roberts spent the night before at his girlfriend’s house and came home about 3:00 a.m. to shower and change into a clean uniform. Roberts lived on the second floor of a duplex with both a front and a rear entrance. Roberts had boarded up the rear entrance after a recent break-in. When he left for work, he locked all three doors leading to his apartment.
Later that morning, Roberts’ downstairs neighbor telephoned him, telling him that a door to his apartment was wide open. Roberts left work to investigate. When he returned home, he found his front doors open and things missing. Roberts also discovered Chambers in his apartment, wearing Roberts’ clothes, and loading items into a laundry basket. Roberts told Chambers to sit down and not to move. According to Roberts, “Chambers kept stating that, man, I ain’t taken nothing. I ain’t do nothing. I just walked in and the door was open. I ain’t – I ain’t steal nothing out your house.” Roberts then called the police. Officer Webb arrived 15 to 20 minutes later. After questioning Roberts and Chambers, Officer Webb instructed Chambers to take off Roberts’ clothes and put on his own clothes. Chambers then led Webb and Roberts to an abandoned house down the street where Chambers told them they might find Roberts’ things. Inside the abandoned house, Roberts identified some of his items and Officer Webb allowed him to recover them.
At trial, Roberts testified that he recently had purchased new toys for his daughter and new TVs, stereos, and video games, replacements he purchased after another break-in at his apartment that had occurred about a week earlier. When asked to provide documentation like electricity bills or rental pay stubs to prove he lived at the apartment, Roberts provided a Texas driver’s license containing the apartment’s address.
Discussion
In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).
In evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. We must also discuss the evidence that appellant argues most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Chambers first contends that the State failed to prove that Roberts’ apartment was not open to the public because the testimony at trial indicates that several abandoned buildings existed in the immediate area. A person commits the offense of burglary of a habitation if “without the effective consent of the owner, the person enters a habitation, or a building (or any portion of a building) not then open to the public, with the intent to commit a felony, theft, or an assault.” Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). “Not then open to the public” modifies “building” in the statute, not “habitation”; therefore closed to the public it is not an essential element of burglary of a habitation. Jackson v. State, 633 S.W.2d 897, 898 (Tex. Crim. App. 1982); Garza v. State, 522 S.W.2d 693, 694 (Tex. Crim. App. 1975). A sufficiency review is limited to the “essential elements” of the offense. See Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001).
Second, Chambers contests the jury’s finding that Roberts’ apartment was his “habitation” and that Chambers intended to commit burglary. Roberts testified, however, that the apartment was not abandoned and that he had purchased new toys and electronics for the apartment after a recent break-in. Roberts provided a driver’s license listing the apartment as his residence. A rational jury could have found from this evidence that the apartment was Roberts’ habitation. Further, Roberts came home to find Chambers in his apartment, wearing his clothes, and loading Roberts’ things into a laundry basket. A rational jury could have found from this evidence that Chambers entered Roberts’ home without consent, and with the intent to commit theft. We conclude that the evidence is legally sufficient to support Chambers’ conviction.
Furthermore, a neutral view of the evidence demonstrates factually sufficient proof to support a conviction. Chambers points to Roberts’ testimony that the door to his apartment was open when he returned to investigate his neighbor’s concern. Although Chambers proffered this evidence as a reasonable explanation for his presence in the apartment, the jury impliedly found his explanation not credible. A jury may resolve inconsistent testimony by making credibility determinations of the witnesses, and it is free to believe or disbelieve any portion of any witness’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We therefore hold that the evidence is factually sufficient to support Chambers’ conviction.
Conclusion
We hold that the evidence presented is both legally and factually sufficient to support the jury’s verdict that Chambers committed the offense of burglary of a habitation. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. Tex. R. App. P. 47.4.