GEORGE RUSSELL AND TARA RUSSELL v. AMERICAN REAL ESTATE CORPORATION--Appeal from 172nd District Court of Jefferson County

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State: Texas

Court: Texas Northern District Court

Docket No: 13-01-00474-CV

Case Date: 10/03/2002

Plaintiff: GEORGE RUSSELL AND TARA RUSSELL

Defendant: AMERICAN REAL ESTATE CORPORATION--Appeal from 172nd District Court of Jefferson County

Preview:NO. 07-07-0464-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 4, 2008 ______________________________

O. C. HAWLEY, III, APPELLANT v. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY; NO. 07-02-6354; HON. HAROLD PHELAN, PRESIDING _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, O. C. Hawley, III, appeals his conviction for burglary of a habitation by commission of a felony, criminal mischief, and subsequent sentence of 40 years confinement in the Institutional Division of the Texas Department of Criminal Justice and fine of $10,000. We affirm.

Factual Background

On December 29, 2006, Ron Seigman, Jr., and his family were in their home. At approximately 5:00 A.M., Seigman woke up because a fan sitting close to the bed stopped working. After investigating, Seigman determined that the house did not have electrical power. While trying to ascertain the cause of the power outage, Seigman heard someone, later identified as appellant, trying to break into his house. Seigman gathered his family in a bathroom and locked the door. Seigman's wife called 911 on her cell phone. While waiting for the arrival of law enforcement, Seigman could hear someone ransacking his home. When the police arrived, they captured appellant. After return of an indictment alleging burglary of a habitation by commission of a felony, criminal mischief, the matter was tried to the court without a jury. Seigman videotaped the damage to the home and the tape was introduced into evidence at appellant's trial. Seigman testified that there was considerable damage to the house and that it had since been repaired. He further testified that a number of personal items and articles of clothing had been destroyed. Seigman testified as to the replacement value of the items destroyed. The trial court found appellant guilty of burglary of a habitation by commission of a felony, criminal mischief.

Appellant contends that the evidence is both legally and factually insufficient to sustain the judgment of the trial court. We disagree and affirm the trial court's judgment.

Standard of Review

When both legal and factual sufficiency are attacked, we must first address the issue of legal sufficiency. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 2

1996). In assessing the legal sufficiency of the evidence, we review all 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).

If the evidence is legally sufficient, we then review the factual sufficiency challenge. Clewis, 922 S.W.2d at 133. When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finder's determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury's verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

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Analysis

Appellant was convicted of burglary of a habitation by committing the felony offense of criminal mischief causing pecuniary damage to real or personal property in the amount of $1,500 or more but less than $20,000. See TEX . PENAL CODE ANN .

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