IN THE
TENTH COURT OF APPEALS
No. 10-08-00118-CR
KENNETH TYRONE BRANCH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 32246CR
MEMORANDUM OPINION
A jury convicted Kenneth Tyrone Branch of burglary of a habitation and assessed
his punishment at ten years’ imprisonment. Branch contends in three issues that: (1) the
court abused its discretion by admitting evidence of an extraneous offense; (2) the
evidence is factually insufficient; and (3) the evidence is legally insufficient. We will
affirm.
Branch argues in his last two issues that the evidence is legally and factually
insufficient to prove he entered the complainant’s home with intent to commit theft.
In reviewing a claim of legal insufficiency, we view all of the evidence in a light
most favorable to the verdict and determine whether any rational trier of fact could
have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748,
753-54 (Tex. Crim. App. 2003); Witt v. State, 237 S.W.3d 394, 395-96 (Tex. App.—Waco
2007, pet. ref’d).
In a factual insufficiency review, we ask whether a neutral review of all the
evidence, though legally sufficient, demonstrates either that the proof of guilt is so
weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly
wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App.
2006); Witt, 237 S.W.3d at 396.
The indictment alleges that Branch committed the offense by entering the
habitation of the complainant Bertha Smith with intent to commit theft and without
Smith’s effective consent. See TEX. PEN. CODE ANN. § 30.02(a)(1) (Vernon 2003). Intent to
commit theft may be inferred from the circumstances. Lewis v. State, 715 S.W.2d 655,
657 (Tex. Crim. App. 1986); accord Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.
2004) (“Intent may also be inferred from circumstantial evidence such as acts, words,
and the conduct of the appellant.”). “[T]he presumption of an intent to commit theft
arises from the nonconsensual nighttime entry of a home.” Brown v. State, 122 S.W.3d
794, 800 (Tex. Crim. App. 2003); see Gonzales v. State, 766 S.W.2d 395, 398 (Tex. App.—
Austin), pet. ref’d, 776 S.W.2d 197 (Tex. Crim. App. 1989) (per curiam); Lucas v. State, 716
S.W.2d 732, 733 (Tex. App.—Corpus Christi 1986, no pet.). Thus, the intent with which
Branch v. State Page 2
a defendant enters a habitation is a fact question for the jury to decide from the
surrounding circumstances. Lewis, 715 S.W.2d at 657; Hernandez v. State, 190 S.W.3d
856, 866 (Tex. App.—Corpus Christi 2006, no pet.); accord Darby v. State, 145 S.W.3d 714,
720 (Tex. App.—Fort Worth 2004, pet. ref’d).
The complainant Smith testified that she has known Branch since he was a child.
She was sleeping on the living room sofa on the occasion in question because she was
having some work done in her bedroom at the time. She was awakened around 2:30 or
3:00 in the morning by a noise. When she went to investigate, Branch walked out of her
bedroom and startled her, and she started screaming. She stopped when Branch
identified himself to her and she recognized him. He told her “you caught me, didn’t
you?” Branch patted Smith on the back for a period of time trying to calm her, asking if
she was going to be okay. After she regained her composure, she told him to get out of
her house, and he did.
Smith did not immediately call the police because she first wanted to try to speak
to Branch’s parents about the incident. She testified that he is a regular guest in her
home. “He left with a little box of something in his hand,” but according to Smith it
was nothing from her home. To the best of her knowledge, nothing was taken from
inside her home. She talked to Branch’s father the next day and filed a report with the
police four or five days after the incident.
Branch v. State Page 3
Branch came by Smith’s house a day or two after the incident apparently to
apologize.1 Smith told him, “I told you if I ever catch you stealing from me, I would call
the police on you.” She also said, “[I]f I wasn’t here that night . . . you could have
cleaned my house out. And he told me, no. I wouldn’t have got it all.”
Smith testified over objection that she later retrieved some flower pots from the
Branches’ home which had been taken from her porch without her knowledge.
Branch’s brother had called the missing flower pots to her attention. She was not sure
when these pots were taken.
Branch testified in his own defense. According to him, he entered Smith’s home
that night because he noticed that her car was gone, her back door was open, and her
air conditioner was running.2 He was concerned for her well-being. He called out for
her several times but got no response. He looked in her bedroom but did not find her.
It was at this point that she awakened and discovered him in her home. His testimony
was fairly consistent with Smith’s concerning his efforts to calm her and her telling him
to leave. He denied taking anything from her house that night, explaining that the
small “box” Smith saw in his hand was his portable CD player. He likewise denied
having told her that she had “caught” him when she first discovered him in her house,
and he denied having a conversation with her about whether he could have “cleaned
her house out” if she hadn’t been there.
1
According to Smith, Branch told her, “I know there’s nothing I can do or say can [sic] make
things right.”
2
The offense occurred on July 1.
Branch v. State Page 4
Branch admitted that he has a previous felony conviction for possession of
cocaine and that he has a “drug problem.” He testified that he took the flower pots
from Smith’s porch a few weeks before the burglary because they were placed in a
location where Smith frequently left items for him to have.
Viewing the evidence in a light most favorable to the verdict, a rational juror
could have found beyond a reasonable doubt that Branch entered Smith’s home with
the intent to commit theft because: (1) it happened at night; (2) Branch told Smith that
she had “caught” him; (3) Branch and Smith later discussed whether he would have
been able to “clean [her] house out” if she had not been there. See Gonzales, 766 S.W.2d
at 398; Lucas, 716 S.W.2d at 733. Additionally, the jury could infer that Branch had the
requisite intent from the extraneous-offense evidence regarding the theft of the flower
pots.3 See TEX. R. EVID. 404(b). Thus, the evidence is legally sufficient to prove that
Branch entered Smith’s home with intent to commit theft. We overrule Branch’s third
issue.
Branch generally contends that the evidence of intent is so weak that it is
factually insufficient. He also refers to his own testimony disavowing any intent to
commit theft as being so strong that the jury’s verdict is clearly wrong and manifestly
unjust. Considering all of the evidence in a neutral light, however, we hold that the jury
was justified in finding him guilty. See Watson, 204 S.W.3d at 415; Gibson v. State, 233
S.W.3d 447, 452 (Tex. App.—Waco 2007, no pet.). The evidence does not demonstrate
3
Even assuming there is merit to Branch’s first issue in which he contends that the court abused its
discretion by admitting this extraneous-offense evidence, we must consider even erroneously-admitted
evidence in evaluating a legal insufficiency claim. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.
App. 2006).
Branch v. State Page 5
either that the proof of guilt is so weak or that conflicting evidence is so strong as to
render the jury’s verdict clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at
414-15; Gibson, 233 S.W.3d at 452. We must defer to the jury’s determination of the
credibility of the witnesses, and we may not ignore evidence that supports the jury’s
verdict. Thus, we overrule Branch’s second issue.
Extraneous Offense
Branch contends in his first issue that the court abused its discretion by
admitting the evidence regarding the flower pots he had taken from Smith’s porch
because it was not disclosed in response to the trial court’s pretrial discovery order.
Smith testified over objection that Branch had taken the flower pots without her
permission but she did not know when they were taken. Later, the State offered
Branch’s videotaped interview with a detective in which Branch told the detective that
he had taken the flowerpots from Smith’s porch on a different day than the occurrence
for which he was convicted. This video and a transcription of the interview were
admitted in evidence and presented to the jury without objection. During Branch’s
testimony, he explained that he had taken the flower pots three or four weeks earlier
because he thought Smith had left them on her porch for him.
The State contends that the admission of the videotaped interview without
objection renders harmless any error in the admission of Smith’s testimony regarding
the flower pots. We agree. See Saldano v. State, 232 S.W.3d 77, 102-03 (Tex. Crim. App.
2007). Accordingly, we overrule Branch’s first issue.
We affirm the judgment.
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FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed February 18, 2009
Do not publish
[CR25]
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