COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00167-CR
VICTOR W. HILL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1335688D
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MEMORANDUM OPINION 1
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A jury convicted Appellant Victor W. Hill of burglary of a habitation, and the
trial court sentenced him to sixty years’ confinement as a repeat offender.
Appellant brings two issues, challenging the sufficiency of the evidence of entry
and of mens rea and arguing that the trial court reversibly erred by failing to hold
a “formal hearing on competency.” Because the evidence at trial was sufficient
1
See Tex. R. App. P. 47.4.
to support the jury’s verdict, and because the trial court committed no reversible
error, we affirm the trial court’s judgment.
Brief Facts
On July 24, a little before 9:30 p.m., Complainant heard someone moving
about in his attached garage. He told the man to leave, locked the connecting
door, and called the police. When the police arrived, they saw that a window had
been broken out of the garage. Complainant told them that several of his fishing
poles were missing and described them. Less than twenty minutes after they
were called, the police located Appellant about half a mile from the house,
walking and carrying several fishing poles. He told police that he was going
fishing at Lake Benbrook, twenty miles away.
Appellant’s trial counsel filed a motion for examination to determine
whether Appellant was competent to stand trial. The trial court granted the
motion. Dr. Barry Norman, a licensed psychologist, examined Appellant twice
before trial and found that he exhibited mild symptoms of schizoaffective disorder
but that he was competent to stand trial. Appellant did not request a formal
hearing, nor did he object to the trial court’s decision not to hold a formal hearing.
Sufficiency of the Evidence
Appellant’s sufficiency argument, presented in his first issue, is two-
pronged:
• There is no evidence of entry;
2
• Because of his mental illness, he was incapable of forming the
intent to commit burglary.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. 2
Evidence of Entry
Appellant argues that there is insufficient evidence that he actually entered
the garage because the police found no fingerprints, no cuts on him, and no
other evidence to connect him to the actual entry. The Texas Court of Criminal
Appeals has held a defendant’s “exclusive and unexplained possession of
property recently stolen in a burglary in conjunction with the fact that he pawned
the property very close to the burgled home . . . sufficient to support his burglary
of a habitation conviction.” 3 The Texas Court of Criminal Appeals clarified this
holding in Rollerson v. State, 4
The State . . . asserts that “if the factfinder is permitted to draw a
reasonable inference that an individual entered certain premises and
committed a burglary, the factfinder is also permitted to draw a
reasonable inference that the individual stole any and all property
taken during the burglary.” We agree, but with a caveat. The
2
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
3
Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006).
4
227 S.W.3d 718 (Tex. Crim. App. 2007).
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inference permitted, in such a situation, is that the individual is
criminally responsible, at least as a party, for all property stolen
during the burglary. A person may be convicted as a party to an
offense if that person commits the offense by his or her own conduct
or by the conduct of another for whom he or she is criminally
responsible. Thus, whether the defendant actually entered the
home is not determinative of whether he is responsible for all items
stolen in the burglary.
Even if appellant was only a “lookout” (or one of several
burglars) he is still guilty of the offense of burglary. 5
In the case now before this court, Appellant was found alone, carrying the
stolen fishing poles, less than an hour after the break-in. Appellant’s only
explanation for his possession of the fishing poles was that he was going fishing.
Under the existing standard for sufficiency of the evidence of burglary, we hold
that a rational trier of fact could have found the evidence that Appellant entered
the attached garage personally or as a party to the burglary sufficient beyond a
reasonable doubt.
Mens Rea
Appellant argues that, because of mental illness and confusion, he lacked
the ability to form the intent to commit robbery. Appellant was neither charged
with nor convicted of robbery. We shall assume that Appellant inadvertently
used the term “robbery” instead of the offense actually charged, burglary, in his
brief. It is unclear to what extent Appellant argues that he could not form the
intent to commit burglary. He was charged with unlawful entry with intent to
5
Id. at 726 (footnotes omitted).
4
commit theft, but he was also charged with entering and actually committing or
attempting to commit theft. Although the jury may not be instructed that they
must employ the presumption that the defendant intended the natural and
probable consequences of his actions, 6
both appellate and trial courts may measure the sufficiency of
evidence by resort to a judicial presumption . . . . For example, the
presumption of an intent to commit theft arises from the
nonconsensual nighttime entry of a home or building. But an
instruction to the jury on this legal “presumption” is an improper
comment on the weight of the evidence.
....
Similarly, in homicide prosecutions, the defendant’s state of
mind is a question of fact that must be determined by the jury. The
intent to kill cannot be presumed as a matter of law. The jury may,
of course, infer intent from any facts in evidence which it determines
proves the existence of such intent to kill, such as the use of a
deadly weapon. Nevertheless, a court may not instruct a jury that
“intent to kill may be inferred from the use of a deadly weapon”
because that instruction would be an impermissible comment on the
weight of the evidence. It singles out a specific type of evidence and
tells the jury that it may infer an element of the crime (such as
criminal intent) from that evidence. 7
As a reviewing court, we review the evidence and permissible inferences
from that evidence to determine whether the jury could have found all the
6
Francis v. Franklin, 471 U.S. 307, 311–12, 105 S. Ct. 1965, 1969–70
(1985).
7
Brown v. State, 122 S.W.3d 794, 800–01 (Tex. Crim. App. 2003)
(footnotes omitted), cert. denied, 541 U.S. 938 (2004).
5
elements of the offense alleged beyond a reasonable doubt. 8 Appellant
challenges the sufficiency of the evidence to prove his intent when he entered
the garage. Given that the indictment alleged both entry with intent to commit
theft and entry and did commit or attempt to commit theft, we hold that the
evidence is sufficient to show that Appellant intended to enter the habitation of
another without that person’s effective consent: he entered in the nighttime
through a broken window, stole fishing poles, and walked away with the fishing
poles without any notice to the owner, even after the owner yelled at him to get
out of the garage. Under the indictment in this case, it was not necessary for the
State to prove entry with intent to commit theft. It is sufficient that the State
proved that Appellant entered the garage without the owner’s effective consent
and actually committed theft. We overrule Appellant’s first issue.
Hearing on Competence
In his second issue, Appellant contends that the trial court reversibly erred
by not holding a formal hearing on the issue of competence. Article
46B.003(a)(1) and (2) of the Texas Code of Criminal Procedure provides, in
pertinent part, that “[a] person is incompetent to stand trial if [he] does not
have . . . sufficient present ability to consult with [his] lawyer with a reasonable
degree of rational understanding; or . . . a rational as well as factual
8
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at
170; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Sorrells v.
State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).
6
understanding of the proceedings against [him].” 9 Any “suggestion” of
incompetence to stand trial requires the trial court to conduct an “informal
inquiry” to determine whether evidence exists to justify a formal competency
trial. 10 Appellate courts review a trial court’s determination whether to empanel a
jury to conduct a competency hearing for an abuse of discretion. 11 A trial court
abuses its discretion if its decision is arbitrary or unreasonable. 12
In the case now before this court, the trial court ordered Dr. Barry Norman
to examine Appellant. Nothing in Norman’s report suggested that Appellant was
incompetent to stand trial. Appellant did not request a formal hearing or object to
the trial court’s decision not to conduct a formal hearing. Nothing in the record
raises any ground to doubt Appellant’s competence to stand trial beyond those
matters addressed by Dr. Norman. Considering the record as a whole, we
cannot say the trial court abused its discretion in deciding not to hold a formal
hearing on competence. We overrule Appellant’s second issue.
9
Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1)–(2) (West 2006).
10
Id. art. 46B.004(c) (“On suggestion that the defendant may be
incompetent to stand trial, the court shall determine by informal inquiry whether
there is some evidence from any source that would support a finding that the
defendant may be incompetent to stand trial.”).
11
Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999).
12
Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009),
superseded on other grounds by statute, Tex. Code Crim. Proc. Ann. art.
46B.004(c–1) (West Supp. 2015).
7
Conclusion
Having overruled Appellant’s two issues, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 4, 2015
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