McIntosh v. State

• Decision Date: 01 October 2009
• Docket Number: No. 01-08-00582-CR.,01-08-00582-CR.
• Citation: 297 S.W.3d 536
• Parties: John Paul McINTOSH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

297 S.W.3d 536

John Paul McINTOSH, Appellant, v. The STATE of Texas, Appellee.

No. 01-08-00582-CR.

Court of Appeals of Texas, Houston (1st Dist.).

October 1, 2009.

Carmen Mae Roe, Houston, TX, Ralph L. Gonzalez, Richmond, TX, for Appellant.

Chad E. Bridges, Assistant Criminal District Attorney, Fort Bend County, John F. Healey Jr., Fort Bend County District Attorneys Office, Richmond, TX, for Appellee.

Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.

OPINION

TERRY JENNINGS, Justice.

Under Texas Rule of Appellate Procedure 50, we withdraw our July 23, 2009 opinion, substitute this opinion in its place, and vacate our July 23, 2009 judgment.¹

A jury found appellant, John Paul McIntosh, guilty of the offense of burglary of a habitation,² and the trial court, after finding true the allegation in one enhancement paragraph that appellant had one prior felony conviction, assessed his punishment at confinement for ten years. In three points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and that the trial court, in its charge, erroneously instructed the jury on the law of burglary of a habitation, the lesser-included offense of criminal trespass, and the facts regarding mistake of fact.

We affirm.

Factual Background

Fort Bend County Sheriff's Deputy V. Garcia testified that on February 26, 2007, he was dispatched to the home of the complainant, Maria Alcantar. Upon his arrival, the complainant, in a recorded statement, told Garcia that she lived in the home with her parents, siblings, and daughter. She also told Garcia that appellant, the father of her three-year-old daughter, had broken into the house through the kitchen window and kicked in the door of the bathroom, where she had been hiding with her daughter and her younger sister, Daisy Alcantar ("Alcantar").

Alcantar testified that on February 26, 2007, she stayed home from school because she "had a pink eye." That morning, she heard appellant knocking on the front door, and then he went around to the back door. The complainant did not want to open the door for him, so Alcantar and the complainant and her daughter hid in the bathroom, locked the bathroom door, and called for emergency assistance. From the bathroom, Alcantar heard appellant break the kitchen window. Then, when appellant broke open the bathroom door, Alcantar began "panicking." When he entered the bathroom, appellant said, "I thought there was another dude in here" and looked around the house before leaving. Alcantar explained that appellant is "pretty jealous." She described appellant as "a jealous guy," who would be angry if he found out that the complainant was dating someone else.

The complainant testified that she had been in a dating relationship with appellant for seven years but that there had "been times when [they had not] been dating." Prior to February 26, 2007, they had ended their relationship, and the complainant was "scared" when she heard someone knocking on the front door. The complainant took her daughter and Alcantar to the master bathroom, where they waited for about ten minutes until the knocking stopped. She then heard appellant in the backyard yelling, "Maria, open the door. I know you're in there because I hear [our daughter] yelling and screaming." The complainant "panicked," ran to the front bathroom with her sister and daughter, and locked the bathroom door. When she heard appellant break the kitchen window, she was frightened. She explained that appellant then walked to the bathroom door and "kicked the door in." When the State played a tape recording of her statement to Officer Garcia that appellant would have "killed her" if he had found her with "another guy," the complainant stated that she had "exaggerated."

Harris County Sheriff's Deputy R. Delano testified that on June 14, 2006, he was dispatched to interview the complainant about an incident that had occurred the previous evening. The complainant told Delano that appellant had arrived at her house, told her to get into his car, and drove her to a barber shop, where he "made her go inside" and "closed and locked the door behind them." After he had locked the door, appellant started drinking alcoholic beverages until he became intoxicated and fell asleep. The complainant tried to wake him up and "get him to take her home," but when he woke up around midnight "he became angry with her, and he struck her one time on the left side of her face." Finally, sometime around 7:30 a.m., appellant allowed her to leave. When Delano interviewed the complainant, she "had a swollen nose, the left side of her face was swollen," and he saw "blood on her clothes."

Appellant testified that he went to the complainant's house on February 26, 2007 because he had heard that there were "some people after" the complainant's brother. After knocking on the door, ringing the doorbell, and calling the complainant on his cellular telephone without getting any response, appellant went to the back of the house because he thought that the back door might be unlocked. When he "got back there, [appellant] heard his daughter crying and screaming," so "[w]ithout hesitation, [he] broke the window" and entered the house. Appellant "thought something was going on, thought something was wrong." Finding the bathroom door locked, appellant "[s]houldered the door in." Regarding Delano's testimony that the complainant had stated that appellant had previously taken her to a barber shop and struck her face, appellant stated that he could not dispute the statement because he "was drunk" and could not remember what had happened. On cross-examination, appellant agreed that he would have "been really angry" if the complainant had been in the house with another man and that he is "a jealous guy." He explained that he left the house because he saw Alcantar "on the phone, and [he] had a warrant for [his] arrest."

Sufficiency of the Evidence

In his first point of error, appellant argues that the evidence is legally insufficient to support his conviction because he "lacked the requisite mental state to intend to commit assault against the complainant." In his second point of error, appellant argues that the evidence is factually insufficient to support his conviction because the "evidence of intent to commit assault is so weak as to undermine ... confidence in the jury's determination."

We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006). Although we should always be mindful that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that ... authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called `thirteenth juror.'" Watson, 204 S.W.3d at 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] ... it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417.

An individual commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation with the intent to commit an assault. TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2003). A person commits the offense of assault if he intentionally knowingly, or recklessly causes bodily injury to another or if he intentionally or knowingly threatens another with imminent bodily injury. Id. § 22.01(a)(1), (2). Juries may infer intent from a defendant's conduct and the surrounding facts and circumstances. LaPoint v. State, 750 S.W.2d 180, 182 (Tex.Crim.App.1986); McGee v. State, 923 S.W.2d 605, 608 (Tex. App.-Houston [1st Dist.] 1995, no pet.).

Regarding the legal sufficiency of the evidence, appellant admitted that he broke a window to gain entry into the complainant's house when no one would open the door and, finding the bathroom door locked, broke the door to get into the bathroom. Appellant admitted that he would have been angry if another man had been in the house with the complainant, and Alcantar testified that appellant said, "I thought there was another dude in here," after he broke into the bathroom. Deputy Delano testified that appellant had assaulted the complainant in the past. Viewed in the light most favorable to the verdict, the evidence supports the jury's finding that appellant entered the house with...