Darrall Earl Houston v. State

Opinion issued December 1, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00318-CR

———————————

Darrall Earl Houston , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 49710B

MEMORANDUM OPINION

A

jury convicted Darrall Earl Houston of burglary of a habitation with intent to

commit aggravated assault and sentenced him to fifty years’ confinement. [1] In his sole issue, Houston

challenges the legal sufficiency of the evidence. We affirm the trial court’s

judgment.

Background

Late

one evening, Q. Durisseau was at his home in Missouri City, Texas, where he

lived with his girlfriend, his son, and his daughter. Durisseau testified that

he was in the kitchen making cereal when he heard loud kicks at his back door.

Durisseau believed that someone was trying to break into his house. He ran from

the kitchen to the couch in his living room, where he kept a nine millimeter handgun.

As Durisseau grabbed the gun from under his couch, a third kick caused the door

to swing open, revealing two masked men carrying handguns. Durisseau testified

that one of the men entered the house, and Durisseau shot him. He also testified

that one of the gunmen fired his gun, but he could not tell which one. After

Durisseau shot one of the gunmen, the other gunman ran away. Durisseau’s gun

jammed, and the injured gunman stumbled out of the house while Durisseau tried

to reload his gun. Durisseau did not chase after them.

Once the two men were out of sight,

Durisseau checked on his son and then called his girlfriend to tell her what

had happened. He did not contact the police. Because of a prior conviction for

possession of marijuana, Durisseau was not allowed to have a gun. He also had a

plastic bag containing several ounces of marijuana. Durisseau attempted to get

rid of the gun and marijuana before the police arrived. He hid the gun in some

bushes across the street from his house and threw the marijuana in the gutter.

That

same night, A. Murguia was driving through Durisseau’s neighborhood on his way

home from picking up his fiancé at school. Murguia testified that he witnessed a

man stumbling around along the curb and falling down near a storm drain. He

also heard something metal hit the ground. Murguia assumed that the man was

intoxicated or high. Murguia and his girlfriend went into her house, coming out

again later when an emergency crew and the police arrived.

T.

Robinson lives in Durisseau’s neighborhood and was outside in his driveway that

evening. He saw two men come running out from behind some houses. One of the

men went down the sidewalk to sit down near the storm drain while the other man

kept running away. Like Murguia, he testified that he heard something metal hit

the ground.

M.

Braswell of the Missouri City Fire Department arrived at the scene to find

Houston lying on his back in a park, near the storm drain described by Murguia

and Robinson. Braswell testified that as they treated Houston for his gunshot

wound, he told them he was shot in a drive-by shooting. Braswell saw that there

was something hidden in the nearby storm drain. When Missouri City emergency

personnel lifted the grate from the storm drain, they found a pistol, ski mask,

and pair of gloves inside the drain.

Sergeant J. York was one of the

officers dispatched to the scene. Both Murguia and Robinson were at the scene

and spoke to York about what they witnessed. York testified that he also spoke

to Houston briefly and that Houston stated that he did not know how he got

shot.

The police recovered Durisseau’s

bag of marijuana from another storm drain near his house and his gun from the

bushes. At Durisseau’s house, police recovered two nine millimeter shell casings

inside the house and two .45 caliber shell casings outside the back door. The

.45 caliber shell casings did not match the gun found in the storm drain near

Houston. The police took photographs of Durisseau’s back door, which was dented

and the frame of which was broken. They also took photographs of the blood on

Durisseau’s living room carpet and a bullet hole in his living room ceiling. At

trial, Durisseau testified that the damage to the door, the blood on the

carpet, and the bullet hole were all a result of the break in, his shooting one

of the masked gunmen, and one of the gunmen firing into the house.

Detective J. Joseph spoke to

Houston about the incident while Houston was at the hospital. Houston initially

told Joseph that he was at the park waiting for his friend, “G,” when multiple

men drove by in a car and fired shots at him. After Joseph expressed doubts

about the veracity of Houston’s story, Houston agreed to “tell [Joseph] the

truth.” Houston then said that he and “G”

were planning to kick in the door and break into the house of a man who

was cheating with “G’s” girlfriend so that they could ask him some questions.

Houston then admitted to kicking in Durisseau’s door, getting shot by

Durisseau, and fleeing the scene. Houston admitted that he had a gun when he

broke into Durisseau’s home but denied wearing the ski mask. Houston said that

“G” wanted him to wear the ski mask but he refused.

Detective G. Nelson also spoke to

Houston at the hospital. Houston admitted to the break in, that he had a gun,

and that he had thrown his “stuff” into the gutter.

Houston’s

testimony about what happened differed significantly from what he previously

told police and emergency personnel. Houston testified that he went to Missouri

City with “G” to purchase marijuana. He testified that they did not kick in the

door but, rather, knocked on the door and were invited in by Durisseau.

According to Houston, the three of them smoked weed together and Durisseau

stated that he would have a friend bring over the ten pounds of weed Houston

wanted to buy. Houston testified that “G,” or Gerald, went out the back door to

take a phone call, and while he was out there, Durisseau pulled out a handgun.

Houston testified that Durisseau told him that he wanted to take a shower and

asked him to wait outside with Gerald. According to Houston, an unknown man

approached him and Gerald while they were outside behind Durissau’s house and

tried to rob them at gunpoint. Houston testified that he grabbed the armed man

and was shot in the struggle. He stated that he then walked to where Gerald’s

car had been parked but found the car gone. He then stumbled down the street to

where he was later found by emergency personnel. Houston denied having disposed

of a gun and ski mask in the nearby sewer.

Houston admitted to having told Detective

Joseph that he and Gerald had gone “to go f*** this guy who was supposed to

have been sleeping with [Gerald’s] girlfriend,” but testified that he was lying

to Joseph at that time. He denied having admitted to Detective Nelson that he

had a gun or that he had thrown anything down the storm drain. In his recount

of his communications with emergency personnel on the scene, Houston did not

tell Braswell that he was shot in a drive-by shooting.

The

jury found Houston guilty of burglary of a habitation with intent to commit

aggravated assault.

Standard of Review

We review Houston’s challenge to the legal sufficiency of

the evidence under the standard enunciated in Jackson v. Virginia , 443 U.S. 307 , 318–20, 99 S. Ct.

2781 , 2788–89 (1979). See Ervin v. State , 331 S.W.3d 49 , 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d) (citing Brooks v. State ,

323 S.W.3d 893 , 894–913 (Tex. Crim. App. 2010)). Under the Jackson

standard, evidence is insufficient to support a conviction if, considering all

the record evidence in the light most favorable to the verdict, no rational

factfinder could have found that each essential element of the charged offense

was proven beyond a reasonable doubt. See Jackson , 443 U.S. at 317 , 318–19, 99 S. Ct. at 2788–89; Laster v.

State , 275 S.W.3d 512, 517

(Tex. Crim. App. 2009). Evidence is insufficient under this standard in four

circumstances: (1) the record contains no evidence probative of an element of

the offense; (2) the record contains a mere “modicum” of evidence probative of

an element of the offense; (3) the evidence conclusively establishes a

reasonable doubt; and (4) the acts alleged do not constitute the criminal

offense charged. See Jackson ,

443 U.S. at 314 , 318 n.11, 320, 99 S.Ct. at 2786 , 2789 & n. 11; Laster , 275 S.W.3d at 518 ; Williams v. State , 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).

The Jackson standard

gives full play to the responsibility of the factfinder to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. See Jackson , 443 U.S. at 318–19, 99

S. Ct. at 2788–89; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes the factfinder resolved any

conflicts in the evidence in favor of the verdict and defers to that

resolution, provided that the resolution is rational. See Jackson ,

443 U.S. at 326 , 99 S. Ct. at 2793 . If an appellate court finds the evidence insufficient under

this standard, it must reverse the judgment and enter an order of acquittal. See

Tibbs v. Florida , 457 U.S.

31, 41 , 102 S. Ct. 2211, 2218 (1982).

Legal Sufficiency of the Evidence

In his sole issue, Houston

contends that, although there was sufficient evidence to prove that Houston entered

Durisseau’s home without consent, the evidence was not legally sufficient to

support the jury’s finding that he had the intent to commit aggravated assault

at the time of entry.

A person commits burglary if he “enters

a habitation . . . with intent to commit a felony, theft or an assault[.]” Tex. Penal Code Ann. § 30.02(a)(1)

(West 2011). A person commits an assault if he “intentionally or knowingly

threatens another with imminent bodily injury” or “intentionally, knowingly or

recklessly causes bodily injury to another.” Id. § 22.01(a)(1), (2). If the

offender “uses or exhibits a deadly weapon” in committing the assault, it is an

aggravated assault. Id. §

22.02(a)(2). The

State had to prove that Houston had the intent to commit an aggravated assault

at the time he entered Durisseau’s home. See

LaPoint v. State , 750 S.W.2d 180, 182 (Tex. Crim. App.

1986).

Intent is an essential element of the offense of burglary,

which the State must prove beyond a reasonable doubt; it may not be left simply

to speculation and surmise. LaPoint , 750 S.W.2d at 182 . However, intent is a question of fact for

the jury, and the jury may infer intent from a defendant’s conduct and the

surrounding facts and circumstances. See

id. In determining whether Houston threatened Durisseau with imminent

bodily injury, the crucial inquiry is whether he “acted in such a manner as would

under the circumstances portend an immediate threat of danger to a person of reasonable

sensibility.” Olivas v. State ,

203 S.W.3d 341, 347 (Tex. Crim. App. 2006). “[O]ne’s acts are generally

reliable circumstantial evidence of one’s intent[.]” Laster , 275 S.W.3d at 524 (quoting Rodriguez v. State , 646 S.W.2d 524, 527

(Tex. App.—Houston [1st Dist.] 1982, no pet.)).

The record contains both direct and circumstantial evidence

that Houston intended to threaten or cause bodily injury to Durisseau when he

broke into Durisseau’s house. First, there is evidence that Houston kicked in

Durisseau’s back door and entered Durisseau’s home without permission at

approximately 11 p.m., while wearing a ski mask and brandishing a gun. [2]

Cf. Macri v. State , 12 S.W.3d 505 , 507–08 (Tex. App.—San Antonio

1999, pet. ref’d) (holding evidence sufficient to support conviction for

burglary with intent to commit aggravated assault, even though accused left

house without actually attempting to injure anyone, when accused broke into

house through window carrying handgun and knife and continually asked, “Where

is she?” before leaving). Such conduct would “portend an immediate threat of

danger to a person of reasonable sensibility.” Olivas , 203 S.W.3d at 347 .

Second, there is evidence that Houston told police officers

that they broke into Durisseau’s home to “f***” Durisseau in retaliation for

sleeping with Gerald’s girlfriend. While Houston testified that he was lying when

he made this statement to Detective Joseph, the jury was free to believe the

story Houston told shortly after the event rather than the story he told at trial.

See Chambers v. State ,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (stating rule that jury is sole

judge of credibility of witnesses, and may choose to believe or disbelieve all

or any part of witness’s testimony). This is particularly true in light of the

physical evidence—such as the damage to Durisseau’s back door, the blood on

Durisseau’s carpet, the bullet hole in Durisseau’s ceiling, and the shells from

Durisseau’s gun found inside Durisseau’s house—which is more consistent with

Houston getting shot after kicking in Durisseau’s back door and entering

Durisseau’s living room than with Houston getting shot on the back porch after

entering and exiting Durisseau’s home with permission as part of a drug deal. See Coleman

v. State , 832 S.W.2d 409, 414 (Tex. App.—Houston [1st Dist.] 1992,

pet. ref’d) (stating that jury could have disregarded accused’s entire

statement of what happened when it was inconsistent with physical evidence and

testimony of others).

With respect to the “aggravated” element of the intended

assault, there is legally sufficient evidence that Houston exhibited a gun.

Durisseau testified that Houston had a gun when he broke into Durisseau’s home.

Two witnesses saw Houston stumbling down the street in Durisseau’s neighborhood

and stop at a storm drain, at which time they heard something that sounded like

metal hitting the ground. The police retrieved a gun, a mask, and gloves from

the same storm drain. Houston was laying in the grass near the storm drain when

he was discovered by emergency personnel. Detective Nelson testified that

Houston admitted to having thrown his “stuff” down the storm drain. Although

Houston denied having made this statement, the jury was free to credit the

officer’s testimony and discredit Houston’s testimony. See Chambers , 805 S.W.2d at 461 .

We overrule Houston’s sole issue.

Conclusion

We hold that the evidence is legally sufficient to support

the jury’s verdict. We therefore affirm the trial court’s judgment.

Harvey Brown

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] Tex. Penal Code Ann. §§ 30.02, 22.01 – 22.02 (West

2011).

[2] Houston argues that an intent to

threaten Durisseau cannot be inferred from “the mere fact of entry into the

home wearing masks and carrying guns” because “the two intruders could just as

equally have had the intent to commit theft instead.” But an intent to threaten imminent bodily

injury and an intent to commit theft are not mutually exclusive. If there is

evidence from which the jury could reasonably infer that Houston intended to

communicate an imminent threat of bodily harm to Durisseau, the evidence is

legally sufficient to support the jury’s verdict in this respect, regardless of

whether the evidence could also support an inference of an intent to steal from

Durisseau.