Christopher Joseph Downum v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 19, 2024
• Docket: 13-23-00351-CR
• Status: Published

Opinion

NUMBER 13-23-00351-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CHRISTOPHER JOSEPH DOWNUM, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 36TH DISTRICT COURT OF ARANSAS COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Peña

Appellant Christopher Downum appeals his convictions for burglary of a habitation,

a second-degree felony, see TEX. PENAL CODE ANN. § 30.02(c)(2), and unauthorized use

of a vehicle, a state jail felony. See id. § 31.07. After a jury returned verdicts of guilty, the

trial court sentenced Downum to three years’ imprisonment for burglary of a habitation, and 622 days’ imprisonment for unauthorized use of a vehicle, with the sentences to run

concurrently. By one issue, Downum argues that the evidence was insufficient to support

his convictions. We affirm.

I. BACKGROUND

In a two-count indictment, Downum was charged with burglary of a habitation, see

id. § 30.02(c)(2), and unauthorized use of motor vehicle. See id. § 31.07. As to count one,

the indictment alleged that “on or about the 15th day of October, 2021,” Downum “did

then and there intentionally and knowingly enter a habitation, without the effective consent

of Charles Pentland, the owner thereof, and attempted to commit or committed theft of

property, namely keys, owned by Charles Pentland.” As to count two, the indictment

alleged that “on or about the 15th day of October, 2021,” Downum “did then and there

intentionally operate a motor-propelled vehicle, namely an automobile[,] without the

effective consent of Charles Pentland, the owner thereof.”

A jury trial commenced on June 28, 2023, at which the following evidence was

adduced. Pentland testified that he was the owner of certain property located in Aransas

Pass, Texas. Pentland’s property consists of three separate lots. As of October 2021, on

lot one, there was a “white mobile home” which Pentland had rented to Christina Downum

in July of that year. Pentland testified that he knew Downum to be Christina’s father, and

that Downum would sometimes stay with Christina in violation of the lease agreement.

On lot two, there was a “[t]urquoise cottage” in which Pentland resided. Finally, on lot

three there was a recently constructed “red house” that was vacant.

Pentland testified that on or about September 21, 2021, he was injured in an

accident and hospitalized. Pentland did not return to his home until October 29, 2021.

2 After his accident, Pentland tasked his handyman Apollo Obuszewski with watching over

his property, as he would occasionally do when Pentland was out of town. Pentland

testified that Obuszewski was the only person authorized to enter his property or use his

vehicles. Pentland further explained that because he was hospitalized unexpectedly, he

did not have time to properly store his keys to his houses or vehicles and had “kept the

keys to [his] RV and the key to [his white Ford] pickup and the keys to [his] red house in

a bowl right besides [his] TV by the couch.”

Obuszewski testified that while Pentland was in the hospital he would check on

Pentland’s residence “[e]very day, if not every other day,” and that on October 15, 2021,

he called the police because he had noticed that the television was on inside Pentland’s

home, which was unusual given that Pentland was in the hospital and the television was

off when Obuszewski checked on the home just the night before. After the police

responded, Obuszewski called again to advise that a window had been broken in the

back of Pentland’s home. Obuszewski testified that he called the police a third time after

he encountered Downum on the property.

Officer Michael Persian with the Aransas Pass Police Department responded to

Pentland’s property. Persian testified that the police were first called to the residence

because “a person who was acting as an agent for the owner believed that somebody

had made entry into the property while the owner was in the hospital. He believed that

that person may still be in the residence.” A short while later, a second call came in

through dispatch, in which “the agent noticed a window was broken and I believe there

was some criminal mischief or damage that had occurred.” During this “second callout,”

Persian observed a broken window at Pentland’s home. At this time, Persian also secured

3 the houses located on lots two and three, making sure the doors were locked. Persian

was then called to the residence a third and final time hours later, where he encountered

Downum. During this third callout, Persian also discovered that one of the doorknobs of

Pentland’s home had a hole drilled through it.

Persian testified that Downum “appeared to be exiting” the white mobile home

located on lot one and walked toward the police. Downum then “stated that the RV was

his, when he was asked if it was his.” Downum also represented as to the “property in

general” that “he had rights to all of it and that he was heir to most everything.” Officer

Terry Camack II, who accompanied Persian, testified:

[W]e got called out there in the evening, me and [Persian] went through the teal building and red building, cleared it. No one was in there. We focused our attention to the RV. While [Persian] was checking the RV, I was standing behind. . . . [Downum] approaches asking, what are we doing, that that’s his RV and that he’s the heir to everything on the property.

Downum notified police that he had keys in his pocket. A search incident to arrest

uncovered numerous keys in Downum’s possession. After Persian and other officers

tested the keys, they confirmed that one of the keys in Downum’s possession was for

Pentland’s RV, one was for Pentland’s “white Ford F-150,” and one was for the red house

located on lot three. While Persian was testing keys on Pentland’s residence, he “noticed

the bottom door handle lock had been drilled or punched” on one of the doors. Persian

confirmed that none of the keys in Downum’s possession opened the doors to Pentland’s

home.

The State introduced police body camera footage into evidence, including certain

still images taken from the video. A still image from the first callout depicts a red vehicle

parked directly in front of Pentland’s home on lot two with no vehicles parked between

4 Pentland’s home and the red house on lot three. Still images from the third callout, which

occurred about six hours later, show that Pentland’s white RV is parked in front of some

trees located between Pentland’s residence and the red house on lot three.

According to the State’s theory of the case at trial, 1 although it was unclear when

Downum acquired the keys, Downum’s possession of the keys and his statements, along

with relevant testimony regarding the television in Pentland’s home and where the RV

was parked, supported a verdict of guilty as to both counts. The jury returned a verdict of

guilty. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Downum argues that the evidence in the case was insufficient to support either

conviction. As to count one, Downum argues as follows:

[Downum] was found with a set of keys to Mr. Pentland’s properties and vehicles, but this does not answer the question of how [Downum] came into possession of the keys, nor can it prove he entered the residence. The doors were locked when police arrested [him] and there is no evidence [he] went in and out through the broken, jagged glass window-hole. This evidence fails to prove the element of entry into Mr. Pentland’s residence.

As to count two, Downum argues as follows:

A burden the State had on Count [two] was to prove [Downum] operated the Volkswagen RV. Again, [Downum] had a key to the RV, and was present on the property his daughter was living at on October 15, 2021, but [his] mere presence does not establish [he] operated the RV. More importantly, [neither] Mr. Obuszewski nor the police officers ever saw anyone driving, inside, or even near the RV. This evidence fails to prove the element that [Downum] operated the RV.

A. Standard of Review & Applicable Law

“Under the Due Process Clause, a criminal conviction must be based on legally

1 The State did not file an appellee’s brief in this case.

5 sufficient evidence.” Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021) (citing

Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015)). Evidence is legally

sufficient if “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Joe v. State, 663 S.W.3d 728, 731–32 (Tex. Crim. App.

2022) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “For the evidence to be

sufficient, the State need not disprove all reasonable alternative hypotheses that are

inconsistent with the defendant’s guilt.” Wise v. State, 384 S.W.3d 900, 903 (Tex. Crim.

App. 2012). Rather, under a legal sufficiency review, we view the evidence in the light

most favorable to the verdict, while recognizing that “[t]he trier of fact is responsible for

resolving conflicts in the testimony, weighing the evidence, and drawing reasonable

inferences from basic facts to ultimate facts.” Joe, 663 S.W.3d at 732; see Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (noting that “the reviewing court is

required to defer to the jury’s credibility and weight determinations”). Further, “[i]t is not

necessary that the evidence directly prove the defendant’s guilt; circumstantial evidence

is as probative as direct evidence in establishing a defendant’s guilt, and circumstantial

evidence can alone be sufficient to establish guilt.” Nisbett v. State, 552 S.W.3d 244, 262

(Tex. Crim. App. 2018) (citations omitted). “Each fact need not point directly and

independently to guilt if the cumulative force of all incriminating circumstances is sufficient

to support the conviction.” Id.

We measure the evidence produced at trial against the essential elements of the

offense as defined by a hypothetically correct jury charge. David v. State, 663 S.W.3d

673, 678 (Tex. Crim. App. 2022) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997)). “A hypothetically correct jury charge ‘accurately sets out the law, is

6 authorized by the indictment, does not unnecessarily increase the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at

240). The “law” as “authorized by the indictment” includes the statutory elements of the

offense as modified by the charging instrument. Curry v. State, 30 S.W.3d 394, 404 (Tex.

Crim. App. 2000).

As to count one, a hypothetically correct jury charge would require the State to

prove beyond a reasonable doubt that Downum (1) intentionally or knowingly 2; (2) without

the effective consent of the owner; (3) entered a habitation; (4) and attempted to commit

or committed theft of property, namely, keys owned by Pentland. See TEX. PENAL CODE

ANN. § 30.02(a)(3). As to count two, a hypothetically correct jury charge would require the

State to prove the following elements beyond a reasonable doubt: Downum

(1) intentionally or knowingly, (2) operated, (3) another’s motor-propelled vehicle,

(4) without the effective consent of the owner. Id. § 31.07(a); see Denton v. State, 911

S.W.2d 388, 390 (Tex. Crim. App. 1995) (en banc) (finding that the term “operate” in the

unauthorized use of a motor vehicle statute should be interpreted the same as the term

“operate” in the driving while intoxicated statute, and providing that “the totality of the

circumstances must demonstrate that the defendant took action to affect the functioning

of his vehicle in a manner that would enable the vehicle’s use”).

2 Although the face of the burglary statute does not require an intentional or knowing mental state

to accompany a defendant’s entry into a habitation, the Texas Court of Criminal Appeals has held that “[i]n order to establish the commission of the offense of burglary of a habitation, the evidence must show ‘that the entry was either knowingly or intentionally done.’” McIntosh v. State, 297 S.W.3d 536, 543 (Tex. App.— Houston [1st Dist.] 2009, pet. ref’d) (quoting DeVaughn v. State, 749 S.W.2d 62, 64 n.3 (Tex. Crim. App. 1988)). Downum does not challenge this language, which was included in the indictment and jury charge.

7 B. Discussion

As to count one, Downum argues that “[t]here is no affirmative evidence that any

particular person entered Mr. Pentland’s home, and no one saw [Downum] in the house.”

Downum implies that the State was required to show how, exactly, Downum entered

Pentland’s residence. For example, Downum complains that no witness testified that the

door with the drilled hole on the doorknob was “operable,” and he argues that it would not

have been physically possible for him to have entered the home through the “small and

jagged” hole in the window.

Downum is mistaken to suggest that the State had to prove the manner and means

of entry into Pentland’s home. The State is only required to prove that entry into the

habitation was made. See TEX. PENAL CODE ANN. § 30.02(a)(3); Reyes v. State, 422

S.W.3d 18, 24 (Tex. App.—Waco 2013, pet. ref’d) (“Direct evidence of entry is not

required; that element may be established by inference, just as inferences may be used

to prove the elements of any other offense. A defendant’s unexplained possession of

property recently stolen in a burglary permits an inference that the defendant is the one

who committed the burglary.” (citing Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim.

App. 2006))). The Texas Court of Criminal Appeals has explicitly noted that to sustain a

conviction for burglary of a habitation, “a defendant’s unexplained possession of property

recently stolen in a burglary permits an inference that the defendant is the one who

committed the burglary.” Poncio, 185 S.W.3d at 905 (sustaining a conviction where the

evidence only showed that “someone entered the victim’s home without the victim’s

consent and stole two guitars,” and that appellant “pawned the guitars at a pawnshop less

than a mile away from victim’s home”). Downum’s unexplained possession of the keys

8 taken from Pentland’s home permitted a rational trier of fact to infer that Downum is the

one who committed the burglary, see id., and although there was no direct evidence of

entry, the “cumulative force of all [the] incriminating circumstances” in the case was

sufficient to satisfy the State’s burden. See Nisbett, 552 S.W.3d at 262.

As to count two, Downum admits that the State “establish[ed] that [Downum] was

present at his daughter’s rental property, that [Downum] was found with keys to the

Volkswagen RV, and presented testimony that [Downum] claimed heirship to the RV.”

Downum argues, however, that the State failed to show that he “was the person who

operated the RV. [Downum’s] mere presence on the date of this arrest at his daughter’s

rental property does not establish [Downum] operated the RV.” Downum continues,

“[m]ore importantly, [neither] Mr. Obuszewski nor the police officers ever saw anyone

driving, inside, or even near the RV on October 15, 2021.”

The State was not required to provide direct evidence that Downum operated the

RV. See Nisbett, 552 S.W.3d at 262. For example, in Bailey v. State, appellant was

convicted of unauthorized use of a motor vehicle in Hopkins County, even though the

direct evidence established only that the appellant had driven the vehicle in Hunt County.

988 S.W.2d 274, 275 (Tex. App.—Texarkana 1998, pet. ref’d). The court of appeals

concluded that “[a]lthough there is no direct evidence that Bailey drove the 1981 sedan

in Hopkins County, the circumstantial evidence that he did so is very strong,” including

the fact that an investigator “saw the vehicle in Bailey’s front yard” in Hopkins County,

and later “observed that the vehicle had been moved to Bailey’s back yard.” Id.

In Kirsch v. State, one court of appeals noted that a jury could rely on circumstantial

evidence alone to satisfy the operation element of the driving while intoxicated statute

9 even though “no witness saw the [vehicle] running.” 366 S.W.3d 864, 868 (Tex. App.—

Texarkana 2012, no pet.); see also BAKER & SIMPSON, 50 TEX. PRAC. SERIES § 1:3 (2024

ed.) (“Proof that a defendant ‘operated’ a motor vehicle while intoxicated may be

established by circumstantial evidence. The State is not required to prove that any person

actually saw the defendant operate the motor vehicle if there is sufficient circumstantial

evidence to support a conviction.”). The court of appeals reasoned that although it was

debatable whether the direct evidence satisfied the operation element,

the jury was not constrained from looking at circumstantial evidence, which alone can be sufficient to establish guilt. There were no businesses or houses near the intersection, and Kirsch was in a lane of a public highway. The jury was free to draw reasonable inferences from the totality of these facts that Kirsch had driven the motorcycle to that place, and thus had operated the motorcycle while intoxicated. Based upon the totality of the circumstances, we find the evidence legally sufficient to demonstrate Kirsch “took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.”

Kirsch, 366 S.W.3d at 868 (citations omitted); see also Ewing v. State, No. 06-13-00089-

CR, 2013 WL 5948108, at *1 (Tex. App.—Texarkana Nov. 5, 2013, no pet.) (mem. op.,

not designated for publication) (sustaining a conviction for unauthorized use of a vehicle

even though, as appellant argued, “there was no testimony from anyone who saw

[appellant] either enter or exit the truck, from anyone who actually observed him seated

in the driver’s seat of the truck, or from anyone who saw him operate or drive the truck”).

Although there was no direct evidence that Downum operated the RV, the State

established the following facts from which a rational trier of fact could infer operation:

Pentland was the owner of the relevant property, including the house on lot two; Pentland

was the owner of the RV and was in the hospital on the date of the unauthorized use;

only Obuszewski had Pentland’s permission to enter his houses or use his vehicles; the

10 keys to the RV were inside Pentland’s home before he went to the hospital; Obuszewski

called the police after hearing the television inside of Pentland’s home, even though the

night before he had checked the home and the television was off; a window on Pentland’s

home was broken and a doorknob had a hole drilled in it; when the police first arrived at

the property, the RV was not parked between Pentland’s home and the red house on lot

three; the third time police responded to the property several hours later, the RV was

parked between Pentland’s home and the red house on lot three; Downum approached

the officers and stated that the RV was his and that he was heir to all the property; the

key to the RV was located in Downum’s pocket; and Obuszewski denied moving any of

Pentland’s vehicles. We conclude that the circumstantial evidence in this case was

sufficient to sustain a conviction for count two, including as to the element of operation.

See Nisbett, 552 S.W.3d at 262; Bailey, 988 S.W.2d at 275; Kirsch, 366 S.W.3d at 868.

We overrule Downum’s sole issue.

III. CONCLUSION

We affirm the trial court’s judgment.

L. ARON PEÑA JR. Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 19th day of December, 2024.