Opinion issued March 1, 2012
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-10-00793-CR, 01-10-00794-CR, 01-10-00795-CR, 01-10-00796-CR
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James Larue Harralson, Appellant
V.
The State of Texas, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case Nos. 09CR3854, 09CR3855, 09CR3856, 10CR0382
MEMORANDUM OPINION
A jury convicted appellant James LaRue Harralson in three cases of burglary of a habitation and in one case of felony theft. See Tex. Penal Code Ann. §§ 30.02, 31.03 (West 2003 & Supp. 2009). After Harralson pleaded true to one enhancement, which alleged that he was previously convicted of the felony offense of aggravated robbery, the court assessed his punishment at 17 years in prison on each burglary count and two years in prison for felony theft, with all periods of confinement to run concurrently. In his first three issues on appeal, Harralson contends that the evidence is legally insufficient to sustain his three convictions for burglary of a habitation because there was no evidence that he entered the three complainants’ trailers and because he was not responsible under the law of parties. In his fourth issue, he challenges the sufficiency of the evidence to support his theft conviction, individually or under the law of parties, claiming there was insufficient evidence that he committed the offense or that the value of the stolen golf cart exceeded $1,500. In his fifth and sixth issues, he argues that the evidence is insufficient to support his burglary convictions because it did not show that the trailers that were burglarized were “habitations.” In his seventh, eighth, and ninth issues, Harralson argues that the trial court erred by not charging the jury on the lesser-included offense of theft in each of his three burglary cases.
Because we find that the evidence is sufficient and that the court properly charged the jury, we affirm.
Background
Jamaica Beach Police Department Officer M. Todaro was working the midnight shift, patrolling the highway, residential areas, and beachfront in Galveston County. At approximately 3:00 a.m. on September 3, 2009, he saw a tan-colored Ford Explorer speed past him driving more than 80 miles an hour in a 35 miles-per-hour zone. As the car turned, Todaro saw its headlights come on. Todaro chased the vehicle, and when he caught up to it, he found it stopped in a ditch. When Todaro approached the vehicle, the front passenger door was open and a man later identified as Willy Davis was sitting in the driver’s seat, holding his hands out the window. Inside the vehicle, Todaro saw “lots of articles, like you would see in someone’s garage, kind of just thrown . . . between the seats, front two seats and into the back of the truck that didn’t appear to have been stacked neatly.” Todaro suspected there had been another person in the car because he saw two drinks covered in condensation. After Davis was arrested, Todaro assisted another law enforcement officer in searching the neighboring state park for a second suspect.
Galveston Police Department Officer B. Johnson was also working the midnight shift, patrolling the west end of Galveston Island. At 3:18 a.m., he received a report about a burglary in progress on Shaman Road in Indian Beach, which is just west of Jamaica Beach. The police dispatcher informed Johnson that the concerned neighbor who had reported the burglary was following the suspects. Officer Johnson came upon Officer Todaro and the stopped Ford Explorer. He later learned that the neighbor who reported the burglary stopped following the Explorer when he saw Officer Todaro begin to chase it. Johnson helped Todaro arrest Davis, and then he went to the house on Shaman Road. The Shaman Road house, which appeared unoccupied, was on stilts, and “there was a lot of property” under the house. Officer Johnson helped Galveston Police Department Officer Atchley identify and collect the property that had been stored beneath the house.
Officer Atchley, who was trained as a field identification officer, was about a mile away from the Shaman Road house when he overheard the report of a burglary in progress, so he went there to assist the other officers. The neighbor who had made the report and followed the Explorer until the police began chasing it saw Officer Atchley and showed him to the house on Shaman Road. Atchley saw property under the house and two golf carts alongside it. He thought it was unusual for the property to be left under the house “because nobody would leave that stuff out.” Atchley testified that he regularly patrolled this neighborhood and that he had never before seen property under the house or golf carts beside it. Atchley said, “That house was usually vacant.”
Atchley took photographs of the property at the Shaman Road house and the inside of the Ford Explorer. He also spoke with Joe Raley, who reported that someone had burglarized his trailer and shed at a nearby Jamaica Beach trailer park called “Texas Campgrounds,” which was located across a vacant field from the house at Shaman Road. Atchley also photographed Raley’s trailer and shed. In addition, he helped to secure and collect the evidence, which, he testified, included two golf carts, sporting equipment, tools, electronics, and other household items. He testified that he found two identical pairs of black and red gloves, which were shown in the photographs. One pair of gloves was found in the truck and the other was under the Shaman Road house. At trial, the State introduced photographs of the property found under the Shaman Road house and in the Ford Explorer.
Galveston Police Officer S. Hirst was working the morning shift on September 3, 2009, when he received reports of multiple burglaries at Texas Campgrounds. He went to the park and photographed three trailers—at lots numbered 109, 110, and 141. Photographs showing the forced entries and the inside areas of those trailers were introduced at trial. Hirst testified that he dusted for fingerprints in two trailers. C. Pearson, who operates the Automated Fingerprint Identification System for the City of Galveston Police Department, testified that none of the fingerprints matched Harralson’s, but she said that no match would be expected if the burglar wore gloves because no fingerprints would be left behind.
Meanwhile, after Harralson fled from the Ford Explorer, he placed several phone calls. Cassie Marsh testified that, at different times, she had dated both Davis and Harralson. She testified that she recognized Harralson’s voice on the telephone and that he called her just before 7:00 a.m. on the morning of September 3, 2009. Harralson told her that he was in Galveston, that he and Davis had been pulled over, that Davis went to jail while he ran, that there were stolen items in the vehicle, and that he needed money to post bond for Davis. On cross-examination, she conceded that when the defense attorney called her before trial, she did not provide this information and denied having any knowledge of the situation at all. However she explained why she did so, saying, “I told you I don’t know anything because I did not know who I was talking to. . . . I didn’t want to put my business out because I did not know who I was . . . talking to until at the end of the conversation that me and you had, you told me who you were.” She said she had not spoken to either Davis or Harralson since September 3, 2009.
Debra Dawson testified that in September 2009 Harralson had been dating her daughter for approximately two months. Early in the morning on September 3, 2009, she received a phone call from Harralson. Phone records admitted at trial showed a call from Harralson’s mobile phone to Dawson at 3:22 a.m. She testified that she was positive that the phone call came from him because she recognized his voice. Harralson told her he was stranded and needed a ride. Dawson woke her daughter, and they drove to meet Harralson, staying in telephone contact with him along the way. Over the course of many phone calls, Harralson told Dawson and her daughter that he had been with Davis, they had an argument, he got out of the car, and he got stranded. She picked him up on the side of a road, and they drove back to Dawson’s house without much further conversation.
Pam Cameron, Davis’s mother, testified she received a phone call from Harralson between 6:30 and 7:00 a.m. on September 3, 2009. She testified that he told her what happened in Galveston:
When he called, he told me, he said, “Aunt Pam, me and [Davis] got pulled over. And when we got pulled over”—he said [Davis] put his hands outside the window and he got out on the passenger’s side, jumped out, and took off into the bushes.
. . . .
He said he was watching the [police officer] arrest [Davis] . . . . And when he turned after—you know, when he was arresting my son, he was watching through the bushes what he was doing. He put my son in the back of the police car. Then they put his Blazer or whatever that was on wrecker.
. . . .
He was just telling me—oh, yeah, and he told [Davis] he should have took off and ran with him. He told [Davis] he should take off and run with him and leave the car and report it stolen.
. . . .
They had some stolen equipment in there. . . . He said it was their stuff that they stole in Galveston. . . . He did say he was wearing gloves . . . .
. . . .
He said he was wearing gloves because they couldn’t track no fingerprints with gloves.
Cameron testified that Harralson called her several times that day, telling her almost the same thing each time he called. She said he asked her for money to post bond for Davis, but she did not give it to him.
Gracie Crowe testified that she was a close family friend of Cameron’s and that she was with Cameron on September 3, 2009, when Cameron received phone calls from Harralson. She said she heard one conversation on speakerphone in which Harralson said that he ran when they were pulled over and he was later picked up by Dawson and her daughter.
Back on the island, Galveston Police Department Detective J. Chide began his shift at 8:00 a.m. on September 3, 2009. Some of the officers involved in the case informed him that a burglary suspect had been arrested, a second suspect had fled, and some stolen property had been recovered. Detective Chide looked at the recovered property and, based on the amount of property he saw, suspected that more burglaries would be reported. He testified:
During the course of that morning, people were waking up and they were finding that, you know, their trailer was broken into or golf carts stolen. Then it was kind of an area, campground area, west end of Galveston, and then other people started looking and notifying their neighbors, you know to check and see if property was stolen. The officers were dispatched to that area and started taking numerous reports of burglaries and thefts.
Complainant Brian Batcheller learned about the burglaries from a neighbor and a cousin who had trailers at the Texas Campgrounds. Batcheller lived in League City, and he kept a travel trailer at lot 110 at the Texas Campgrounds. He testified that he and his family “usually come down on the weekends and spend the entire weekend.” Batcheller had tools in his trailer at that time to rebuild what was destroyed by Hurricane Ike. When he learned about the burglaries, he drove to Galveston to check on his trailer. Upon his arrival, he noticed that the door latch had been pried, that glass and a screen had been broken, and that there was glass all over the deck. He also discovered that his tools were gone. He said:
I had several tools in there that I had—like I say, I was trying to rebuild everything and all my tools were gone. I noticed—I had them stacked on the floor when you walk in and they were gone. And there’s some drawers—I think there might have been a couple of drawers pulled out and one of the closets might have been opened. I mean I knew then that somebody had been in there.
. . . .
I had a couple of fans, they were gone. They were in the back part of the trailer. So it wasn’t just one area. They went through the whole trailer.
. . . .
I had a DeWalt combination set which includes a drill, a saw, a light. Some other items in the combination kit. I had a sawzall. I had a drill. I had a bag of tools that had all my electrical test equipment in there along with wrenches and other pieces of equipment. I had a socket set, flashlights, things that you would need to rebuild what I had to rebuild out there. Probably—I don’t know if it’s relevant—but about $2,000 worth of hand tools roughly. A battery charger for my golf cart. About $500 worth of battery charger. . . . [And] a Maglite flashlight . . . .
When he was shown a photograph of some of the property that was found under the Shaman Road house, he identified his tools, his fans, and his battery charger. He testified that he recovered his property from the police station, but one of his fans was badly damaged. He also testified that he was at his trailer four days before the burglary and that he had not given anyone, including Harralson or Davis, permission to enter his trailer.
Complainant John Ginn testified that he lived five days a week in his trailer, which he kept at lot 109 at the Texas Campgrounds. Ginn said that in September 2009 he primarily lived in Huntsville, but he and his family came to Galveston and stayed in his trailer as often as they could. He said that there had been a fence between the campgrounds and Indian Beach, but the fence was destroyed by Hurricane Ike and not in existence in September 2009.
Ginn was on his way to the campgrounds, and he learned that his trailer had been burglarized only after he arrived. He testified:
When I came down, the police were actually there investigating a burglary at Brian Batcheller’s trailer which is across the street from mine. And so, you know, they had told me what was going on when I drove up. And then when I went over and checked my trailer, the door was unlocked and somebody had been in.
. . . .
Well, as soon as you go in my trailer—well, I mean, they’re all little—but just to the right of the door is the TV and the TV was gone. All the doors were open, all the drawers were open. So somebody had been in there obviously looking.
. . . .
Once I started looking, I was missing a rod and reel and a hunting knife and the remotes to my DVD player and my TV and antenna-box thing. So all that was what I noticed missing the first day.
. . . .
The TV was [worth] about $350 and the rod and reel was like a hundred twenty-five, a hundred dollars, something like that with tax. And the hunting knife was about a hundred dollars.
When he was shown a photograph of some of the property that was found under the Shaman Road house, he identified his television. He testified that he recovered only his television from the police station. He also testified that he was at his trailer a few days before the burglary and that he had not given anyone, including Harralson or Davis, permission to enter his trailer.
Complainant Mary Mach lived in Spring, and she kept a trailer at lot 141 at the Texas Campgrounds. She testified that this was her family’s vacation home, which they used frequently in the summer and occasionally in the winter. On September 3, 2009, “[w]e got a phone call from the maintenance man in Galveston telling us that our place had been broken into.” She and her daughters had been planning to go to Galveston, so they left immediately to inspect their trailer. At trial, Mach identified her trailer door from a photograph, which showed signs of forced entry. Mach testified that it looked like “[o]ur trailer got broken into.” “It looked someone had been in there. There were things placed in different areas that weren’t when we left. There were things missing.” She testified that her iPod docking station, some of her husband’s tools, and keys to their golf cart, the swimming pool, and the clubhouse were missing from her trailer. She also testified that some fishing poles were missing from their shed. Mach said that a neighbor returned the keys to her golf cart, which he found in his golf cart, which was also stolen.
When she was shown photographs of some of the property that was found under the Shaman Road house, she identified her iPod docking station and fishing poles. She testified that the fishing poles were new and had been a gift from her father. She did not know how much the fishing poles were worth. She testified that she recovered the fishing poles and the iPod docking station from the police station, but the iPod docking station was damaged. She also said that she had not given anyone, including Harralson or Davis, permission to enter her trailer.
Complainant John White testified that he worked in Deer Park as a police officer and kept a trailer at the Texas Campgrounds as his family’s vacation home. On September 3, 2009, White received a phone call from a Texas Campgrounds employee who informed him that his golf cart had been stolen and was at the police impound in Galveston. White drove to Galveston to claim his golf cart. He said his golf cart was black and red and “pretty distinctive.” He testified that he custom-built much of it himself. Though he paid only $300 for the golf cart, he estimated that with the time and materials he put into it, it was worth approximately $2,000. White said that he did not know Harralson or Davis and did not give them permission to take his golf cart. White testified that he recovered his golf cart, but it was damaged.
At trial, Detective Chide said that the dispatched police officers had been asked to get a good description of what property was missing so that it could be identified with the property that was already at the police station. Chide testified that all of the property recovered from the Explorer and the Shaman Road house was identified as stolen property.
With Davis in police custody, Chide turned his attention to finding the second suspect. Chide spoke with seven people, including relatives and friends of Davis and Harralson. He spoke to Harralson, who told him that he was not in Galveston at the time of the burglaries. But at trial, the State introduced mobile phone records showing that calls made from Harralson’s phone just after Davis was arrested were routed through cellular towers in the Galveston area, and witnesses testified that Harralson called them at the times the phone records showed Galveston-area cellular tower usage.
One of the people with whom Chide spoke was Tommy Foulk. Chide testified that Foulk was reluctant to speak with him but provided some good information. Foulk testified at trial. Foulk, who is Davis’s cousin, said that he and Harralson were close friends, like brothers. But Foulk denied having spoken to Harralson about any connection to the burglaries and he denied telling Detective Chide about any such conversation. In testimony presented to impeach Foulk’s denial of having provided information to him, Chide testified:
Mr. Foulk said he would tell me what [Harralson] told him and what happened in Galveston but he would only tell me and he wouldn’t tell anyone else. And if anyone asked him, he would deny it.
. . . .
Mr. Foulk stated that [Harralson] had told him that he had ran from [Davis’s] Explorer, Ford Explorer when the police pulled them over in Galveston. He told me that he had hid in a second-story balcony of a beach house and watched the police as they were looking for him.
. . . .
He continued to say that [Harralson] told him that he had stolen stuff in [Davis’s] vehicle and some of the stuff—some more stuff was under a beach house. And [Harralson] told him that he and [Davis] went to Galveston; they had some bikes; they were going to ride around; and they found a golf cart and then another golf cart; and they started riding around and they saw a shed open and got some fishing poles and tools and brought some of the stuff under the beach house.
Based on his investigation, Chide identified Harralson as the second suspect. Harralson was arrested and charged in three cases for burglary and in two cases for felony theft. After the State rested, the trial court granted Harralson’s motion for directed verdict as to one of the theft charges. Harralson rested without introducing any additional evidence. At the charge conference, Harralson sought to have the jury charged on the lesser-included offense of theft in each of the burglary cases, and the trial court denied his request. The jury found Harralson guilty in each burglary case and in the theft case. The trial court found the enhancement provision in the indictment true, and it assessed punishment at 17 years in prison for each burglary and 2 years in prison for the theft conviction. Harralson appealed, raising six issues challenging the sufficiency of the evidence and three issues challenging the trial court’s denial of his request to charge the jury on the lesser-included offense of theft.
I. Sufficiency of the evidence
A. Standard of review
In reviewing the legal sufficiency of the evidence to support a criminal conviction, a court of appeals will determine “whether, after viewing the evidence in the light most favorable to the prosecution, 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). Our review of the evidence includes evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As the exclusive judge of the facts, the jury may believe or disbelieve all or any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that the fact finder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. On appeal we may not re-evaluate the weight and credibility of the record evidence and thereby substitute our own judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In reviewing the evidence, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Detective Chide’s testimony
As a preliminary issue, Harralson argues that Detective Chide’s testimony was admitted only to impeach Foulk and, therefore, it must be disregarded in this Court’s sufficiency review. When evidence is admissible for one purpose such as impeachment, but not all purposes, a defendant may request a limiting instruction to restrict the evidence to its proper scope. See Tex. R. Evid. 105(a). When such a limiting instruction is given, “[t]estimony admitted only for impeachment purposes is without probative value and cannot be considered in determining the sufficiency of the evidence to support the conviction.” Goodman v. State, 665 S.W.2d 788, 792 & n.2 (Tex. Crim. App. 1984) (citing Key v. State, 492 S.W.2d 514, 516 (Tex. Crim. App. 1973)). However, “[a] failure to request a limiting instruction at the time evidence is presented renders the evidence admissible for all purposes and relieves the trial judge of any obligation to include a limiting instruction in the jury charge.” Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008) (citing Hammock v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001)).
Harralson objected to Chide testifying about what Foulk told him on the grounds that it was hearsay. The trial court overruled the objection, observing that Chide was called to impeach prior testimony of a witness. The trial court did not instruct the jury that Chide’s testimony was being offered only for a limited purpose, and Harralson did not request a limiting instruction. Because there was no limiting instruction and no request for a limiting instruction, Chide’s testimony was admitted for all purposes and may be considered in this Court’s sufficiency review. See Williams, 273 S.W.3d at 230.
C. Burglary of the trailers
Harralson brings five issues pertaining to his three convictions for burglary of a habitation. In his first three issues, he argues that the evidence is insufficient to show that he committed the burglaries or that he could be held liable under the law of parties. In his fifth and sixth issues, he argues that the evidence was insufficient to show that Batcheller’s and Ginn’s trailers were habitations. Harralson’s brief included no argument that Mach’s trailer did not qualify as a habitation.
A person commits burglary of a habitation “if, without the effective consent of the owner, the person enters a habitation . . . with intent to commit a felony, theft, or an assault.” Tex. Penal Code Ann. § 30.02(a) (West 2003). A person commits a theft if “he unlawfully appropriates property with intent to deprive the owner of property.” Id. § 31.03(a) (West Supp. 2009). Appropriation of property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
The State must prove beyond a reasonable doubt that the defendant is the person who committed the charged offense. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). But “the law in Texas allows individuals . . . to be held criminally responsible for the conduct of another when that individual acts in concert with another person in committing an offense.” Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); see Tex. Penal Code Ann. §§ 7.01–.02 (West 2011). “Circumstantial evidence alone may be used to prove that a person is a party to an offense.” Powell, 194 S.W.3d at 506 (citing Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987)). Furthermore, an individual can be guilty of burglary of a habitation even though he does not personally enter the burglarized premises if he is acting together with another in the commission of the offense. Powell, 194 S.W.3d at 506–07.
1. Harralson’s participation in the burglaries
In his first three issues, Harralson contends there is no evidence that he personally entered the trailers owned by Batcheller, Ginn, and Mach. He argues that evidence that he fled from the Ford Explorer which contained the stolen property was insufficient to support an inference of guilt. He argues that there is no evidence connecting him to the property found under the Shaman Road house. He also contends that there is no evidence that he is guilty as a party because there is no direct evidence that he assisted Davis in committing the burglaries or that he agreed to do so. He argues that the circumstantial evidence does not prove his participation in this crime, only his mere presence.
The evidence showed that Harralson was in Galveston with Davis at the time of the burglaries and that Harralson told several people about his involvement in the burglaries. Specifically, Debra Dawson testified that Harralson called her just after 3:00 a.m. on September 3, 2009, and that she and her daughter picked him from the side of the road in Galveston after he had told them he was stranded there. Cassie Marsh testified that around 7:00 a.m. on that same morning, Harralson called her and told her he was in Galveston, that he and Davis had been pulled over, that there was stolen property in the vehicle, and that he fled the car. Pam Cameron testified that Harralson called her, told her that he and Davis were pulled over, that he fled the vehicle on foot because the vehicle contained property “that they stole in Galveston,” and that he had worn gloves to avoid leaving fingerprints. Gracie Crowe testified similarly, saying that she overheard a conversation between Harralson and Cameron on the speakerphone. Chide testified that Tommy Foulk told him that Harralson said he and Davis “had stolen stuff” in Davis’s vehicle and under a house in Galveston and that he fled from police when the vehicle was pulled over. In addition, the State introduced mobile phone records, which showed that calls made from Harralson’s phone on the morning of the burglaries were routed through Galveston-area cellular towers.
Other circumstances connecting Harralson to the crime include the evidence that a concerned neighbor reported a burglary in progress, followed Davis’s vehicle until the police began to pursue it, and then led other police officers to the house at Shaman Road, where the stolen property had been stashed. The burglaries all occurred at the Texas Campgrounds, which was close to the Shaman Road house. Batcheller, Ginn, and Mach all identified their stolen property in photographs showing what was stashed under the Shaman Road house. And photographs of the house and the car showed identical pairs of gloves, consistent with Pam Cameron’s testimony that Harralson said that they wore gloves so that there would be no fingerprints left behind.
Finally, Batcheller, Ginn, and Mach each testified that they had not given Davis or Harralson permission to enter their trailers. Evidence introduced at trial, including photographs, showed signs of forced entry, including broken glass and damaged doorjambs and locks.
Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found beyond a reasonable doubt that Harralson acted alone or in concert with Davis to enter the trailers owned by Batcheller, Ginn, and Mach and to take their property without their consent. See Jackson, 443 U.S. at 319, 99 S. Ct. 2781 at 2789; see also Tex. Penal Code Ann. §§ 30.02, 31.03. We hold that the evidence is legally sufficient in this respect to support the burglary convictions, and we overrule Harralson’s first three issues.
2. The trailers’ status as “habitations”
In his fifth and sixth issues, Harralson argues that there is no evidence to show that Batcheller’s and Ginn’s trailers were habitations. A “habitation” is “a structure . . . that is adapted for the overnight accommodation of persons.” Tex. Penal Code Ann. § 30.01(1). In this context, “adapted” means “suitable.” Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989).
The most significant element of the definition is the adaptation “for the overnight accommodation of persons.” “What makes a structure ‘suitable’ or ‘not suitable’ for overnight accommodation is a complex, subjective factual question fit for a jury’s determination.” The jury may look to a host of considerations such as the contents of the structure, including bedding, electricity, plumbing, or furniture; the jury may also look to and consider the type of structure and its typical use as a means for overnight accommodation.
Salazar v. State, 284 S.W.3d 874, 877 (Tex. Crim. App. 2009) (footnotes omitted, quoting Tex. Penal Code Ann. § 30.01(1) and Blankenship, 780 S.W.2d at 209–10). Each factor is relevant; none is essential or necessarily dispositive. Blankenship, 780 S.W.2d at 209. A jury’s determination that a burglarized place was a habitation will not be overturned on appeal unless the appellant can demonstrate that no reasonable trier of fact could have found that the structure was a habitation. See id.
Batcheller testified that he lived in League City but that he and his family usually stayed overnight in the trailer. He said they “usually come down on the weekends and spend the entire weekend.” Ginn testified that in 2009, he and his family used the trailer as a second home or a vacation home, but he said that at the time of trial, he was living there five days a week. In addition, the State introduced photographs showing the trailers from the inside and the outside. The pictures showed beds, other household furniture and items, permanent decks built alongside the trailers, and food. Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found beyond a reasonable doubt that Batcheller’s and Ginn’s travel trailers were suitable for the overnight accommodation of people. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Salazar, 284 S.W.3d at 877. We hold that the evidence is legally sufficient to show that the trailers in question were habitations, and we overrule Harralson’s fifth and sixth issues.
D. Theft of the golf cart
In his fourth issue, Harralson argues that the evidence is legally insufficient to show that he committed theft because there were no fingerprints on John White’s golf cart, and the fact that it was found under Shaman Road with the other stolen property is insufficient to support the conviction. In addition, Harralson argues that there is insufficient evidence that the golf cart was worth $1,500 or more. A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a). Theft is a state jail felony if the value of the stolen property is more than $1,500 but less than $20,000. Id. § 31.03.
As we have noted, there is some evidence that Harralson wore gloves in the commission of the crimes, which, if credited by the jury, would have provided an explanation for the lack of fingerprints on the golf cart. In addition to the circumstantial evidence that we have already said is legally sufficient to hold Harralson criminally responsible for the three burglaries, there is also evidence pertaining to the golf carts. Specifically, Detective Chide testified about what Foulk told him. Chide testified that Harralson told Foulk that he and Davis were riding bicycles around Galveston and they found two golf carts and “then they started riding around.” With the other circumstantial evidence, including the fact that White’s golf cart was found at the Shaman Road house with the other stolen property, and viewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found beyond a reasonable doubt that Harralson acted alone or in concert with Davis to steal the golf cart. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Harralson also complains about the proof of the golf cart’s value. The Penal Code establishes how the value of stolen property is to be determined for the purpose of a theft offense. Tex. Penal Code Ann. § 31.08 (West 2011). Under the Penal Code, value is either “(1) the fair market value of the property or service at the time and place of the offense; or (2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft.” Id. John White testified that his golf cart was distinctive. He said, “It’s the only one in the whole campground that looks like it does because I’ve custom-built a lot of it myself.” He testified about its value and the replacement cost, saying that he believed it was worth $2,000. “I bought it used; but, you know, when you go to buy one, shop to buy one, you can seldom find one that runs and is operational for less than $2,000.” On cross-examination, he testified that it was a 1987 Easy Go Marathon model golf cart. He said that he paid $300 for it, but he said, “I bought it from a person on Craigslist and it was in far worse shape than it’s in now. I put brand-new batteries in it.”
Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found beyond a reasonable doubt that White’s golf car had a fair market value of $2,000 based upon White’s testimony, or that due to its customization, its fair market value could not be determined and that it would cost $2,000 to replace it with a functioning golf cart. See Sullivan v. State, 701 S.W.2d 905, 908–09 (Tex. Crim. App. 1986) (“It has long been the rule in this State that the owner of property is competent to testify as to the value of his own property. . . . When an owner testifies, the presumption must be . . . that the owner is testifying to an estimation of the fair market value.”); see also Tex. Penal Code Ann. § 31.08. We hold that the evidence is legally sufficient to show that the value of the stolen property was more than $1,500. We overrule Harralson’s fourth issue.
II. Lesser-included offense
In his seventh, eighth, and ninth issues, Harralson contends that the trial court erred by denying his request to charge the jury on the lesser-included offense of theft as to each of his burglary charges.
An offense qualifies as a lesser-included offense of the charged offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish commission of the offense; (3) it differs from the offense charged only in that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2004). To determine whether a defendant is entitled to an instruction on a lesser-included offense, the court conducts a two-pronged test. See Ex parte Watson, 306 S.W.3d 259, 272–73 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). The first prong of the test requires the court to use the “cognate pleadings” approach to determine whether an offense is a lesser-included offense of another offense. The first prong is satisfied if the indictment for the greater-inclusive offense either: “(1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced.” Watson, 306 S.W.3d at 273.
Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.
Id. This inquiry is a question of law. Hall, 225 S.W.3d at 535.
The second prong asks whether there is evidence that supports giving the lesser-included-offense instruction to the jury. Id. at 536. A defendant is entitled to a requested instruction on a lesser-included offense when the proof for the charged offense subsumes the proof required to establish the lesser-included offense and some evidence in the record would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. A lesser-included-offense instruction is required when the evidence establishes the lesser-included offense as a valid, rational alternative to the charged offense. Id.
Although theft can be a lesser-included offense of burglary, see Phillips v. State, 178 S.W.3d 78, 82 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), Harralson has not satisfied the second prong of the test, which requires that the record show that some evidence would permit the jury to find, rationally, that if Harralson is guilty, he is guilty only of the lesser offense. See Hall, 225 S.W.3d at 536. The evidence showed that Harralson and Davis acted together, that the stolen property was inside locked trailers that were forcibly entered, and that the owners of the property did not consent to Harralson or Davis entering the trailer or possessing the property. Though it was within the jury’s province to believe or disbelieve the evidence that was presented, “it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).
Harralson argues that the trial court should have charged the jury on his requested lesser-included offense based solely on the weakness of the evidence to support a burglary conviction. That is not the law. See id. He further argues that there was evidence that he and Davis had a disagreement that led to his leaving the vehicle and that there was no evidence about when Harralson left the vehicle because of the disagreement. Thus, Harralson argues that the jury could have believed that there was an agreement to commit theft but a disagreement about whether to commit burglary. But the evidence at trial was that Harralson left the vehicle after Davis pulled over when the police were chasing them. The stolen property was already in the vehicle at this time. There is no evidence that Harralson disagreed about committing burglary and only possessed the stolen property after Davis committed burglary by himself.
There is no evidence in the record in this case suggesting that if Harralson is guilty, he is guilty only of theft and not of burglary. See Hall, 225 S.W.3d at 536. Harralson has not shown that he was entitled to a lesser-included offense instruction. See id. We overrule Harralson’s seventh, eighth, and ninth issues.
Conclusion
We affirm the judgments of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Do not publish. Tex. R. App. P. 47.2(b).