Opinion issued June 24, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00722-CR ——————————— FIDEL ANTONIO BLANDON VASQUEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 482nd District Court Harris County, Texas Trial Court Case No. 1745762
MEMORANDUM OPINION
A jury convicted Fidel Antonio Blandon Vasquez of the second-degree felony
offense of burglary of a habitation, and the trial court sentenced him to six years’
imprisonment. See TEX. PENAL CODE § 30.02(a)(3), (c)(2). In three issues on appeal, Vasquez argues that his trial counsel provided ineffective assistance and that the
evidence was legally insufficient to support his conviction. We affirm.
Background
In October 2021, Vasquez lived across the street from the complainants—
Carlos Perez Paz, his wife Olga Morales, and their four young children—who had
just moved in a few months earlier. Paz and Morales had seen Vasquez but had not
spoken much to him.
In the early hours of October 31, Vasquez was lying on his couch intoxicated
from alcohol and methamphetamine. He claims he heard his daughter’s voice in his
head saying that a man was holding her at the house across the street, where Paz and
Morales lived. Vasquez went to the house, snuck in the backyard, and broke the glass
on the back door with a guitar, waking Paz. Paz saw Vasquez swinging the guitar at
the door like a baseball bat, so he returned to his bedroom, woke up Morales, and
told her to call 911.
Paz then went towards the back door and saw that Vasquez had broken
through the glass and “was inside” the house and “in front of [Paz].” Paz saw
Vasquez point a gun at and threaten to kill him. Morales came out of her bedroom
and stood outside her daughter’s bedroom near the back door. She could not see
Vasquez well and did not see a gun, but she heard him threaten Paz. Vasquez heard
Morales on the phone with 911 and told her to put the phone down. Vasquez said
2 that he was looking for a girl, so Morales told her daughter to hide under the bed.
Neither Paz nor Morales knew what girl Vasquez spoke of, but Morales told Vasquez
that “she already left” to get him to leave the house. Her quick thinking worked, and
Vasquez left.
Houston Police Department officers searched the neighborhood and
eventually found Vasquez hiding in front of another neighbor’s house. Officers
searched the vicinity and Vasquez’s home with permission, but they never found a
gun. Vasquez was arrested and taken into custody.
The State indicted Vasquez for the first-degree felony offense of burglary of
a habitation, alleging that Vasquez entered a habitation and committed or attempted
to commit aggravated assault with a deadly weapon. See id. § 30.02(a)(3), (d). He
pleaded not guilty.
During a pretrial conference, the parties discussed Vasquez’s prior
convictions and eligibility for community supervision. The State asserted that
Vasquez did not have any prior felony convictions, and his prior convictions
included “only an immigration deportation case and a DUI out of California.”
Vasquez’s attorney asserted that Vasquez was ineligible for community supervision
because he was not a United States citizen and he previously had been deported:
So the record is clear, Your Honor, if he was a citizen of the United States, that would make him automatically eligible for probation if [he] went to trial and lost. Since he is not a citizen of the United States and
3 he has a previous deportation, he cannot accept a probation from the State.
Vasquez did not request any consideration of community supervision.
At trial, the State called Paz, Morales, and two HPD officers who responded
to Morales’s 911 call. Paz and Morales testified that Vasquez broke the glass on the
back door and entered their house, and Morales denied giving anyone permission to
be in her home. Paz and Morales also testified that Vasquez threatened to kill Paz.
But only Paz testified that Vasquez had a gun. Morales testified that she could not
see Vasquez well from where she was standing, but she heard him make threats.
Vasquez testified in his defense. He admitted to drinking eight or nine beers
and smoking methamphetamine sometime before going to his neighbors’ home. He
testified that the drugs and alcohol made him hear voices saying that his daughter
was in danger at Paz’s house. Vasquez also admitted to breaking Paz’s glass door
with a guitar, but he denied entering the home, having a gun on him, or making any
threats. Vasquez expressed remorse for his actions, which he blamed on mixing
alcohol and drugs. He testified that the night of the burglary was only the third time
he had ever used methamphetamine. He denied having a drug or alcohol problem,
although he acknowledged that his current criminal charge indicated he did have
such a problem.
The two HPD officers testified that they detained Vasquez after they found
him hidden in another neighbor’s front yard. They never found a gun, and Vasquez
4 did not hurt anyone. One officer testified that Paz had surveillance cameras at his
house, but Paz was unable to show the officers any recordings from these cameras.
The trial court admitted into evidence Morales’s 911 call, a video recording from an
officer’s body camera, and photographs of the broken glass in the back door.
After both sides rested, the trial court submitted a jury charge with instructions
on a primary offense and two lesser-included offenses. The primary charged offense
was first-degree burglary of a habitation by committing or attempting to commit
aggravated assault with a deadly weapon. See id. The two lesser-included offenses
were second-degree burglary of a habitation by committing assault and misdemeanor
criminal trespass. See id. §§ 30.02(a)(3), (c)(2), 30.05(a)(1), (d)(3)(A)(i).
The jury found Vasquez guilty of second-degree burglary of a habitation. At
Vasquez’s request, the trial court sentenced him to six years’ imprisonment. Vasquez
did not file any post-judgment motions. This appeal followed.
Ineffective Assistance of Counsel
In his first and second issues, Vasquez contends that his trial counsel provided
ineffective assistance of counsel by failing to file a motion for community
supervision and by failing to present mitigation evidence concerning Vasquez’s
alcohol and drug use.
5 A. Standard of Review and Governing Law
The Sixth Amendment to the United States Constitution guarantees the right
to counsel in criminal prosecutions. U.S. CONST. amend. VI; see also TEX. CONST.
art. I, § 10. “[T]he right to counsel is the right to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771, n. 14 (1970)).
To prevail on an ineffective assistance claim, a defendant must prove that
(1) his trial counsel’s performance was deficient; and (2) the deficient performance
prejudiced the defense. Id. at 687; Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim.
App. 2023). The defendant bears the burden of proving both prongs by a
preponderance of the evidence. Strickland, 466 U.S. at 687; Dryer v. State, 674
S.W.3d 635, 646 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d). “The purpose of
this two-pronged test is to assess whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be said to have
produced a reliable result.” Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App.
2013).
Under the first prong, trial counsel’s performance is deficient if it falls below
an objective standard of reasonableness. Hart, 667 S.W.3d at 781. Judicial scrutiny
of counsel’s performance is highly deferential. Villa, 417 S.W.3d at 463. There is “a
strong presumption that counsel’s conduct falls within the wide range of reasonable
6 professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Hart, 667 S.W.3d at 781 (quoting Strickland, 466 U.S. at 689).
Thus, an ineffective assistance claim “must be firmly rooted in the record.”
Id. at 782. Generally, “the record on direct appeal will not be sufficient to show that
counsel’s representation was so deficient and so lacking in tactical or strategic
decision-making as to overcome the strong presumption that counsel’s conduct was
reasonable and professional.” Id. (quoting Scheanette v. State, 144 S.W.3d 503, 510
(Tex. Crim. App. 2004)); see also Dryer, 674 S.W.3d at 647 (“The reasonableness
of counsel’s decisions often depends on facts that do not appear in the record.”).
Trial counsel should ordinarily be given an opportunity to explain his conduct on the
record before a court will sustain an ineffective assistance claim. Hart, 667 S.W.3d
at 782.
When counsel has not been given such an opportunity, courts “commonly
assume a strategic motive if any can be imagined and find counsel’s performance
deficient only if the conduct was so outrageous that no competent attorney would
have engaged in it.” Id. (quoting Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim.
App. 2013)). Counsel’s performance is deficient only if the court finds, as a matter
of law, that “no reasonable trial strategy could justify trial counsel’s acts or
7 omissions, regardless of his or her subjective reasoning.” Id. (quoting Lopez v. State,
343 S.W.3d 137, 143 (Tex. Crim. App. 2011)).
Under the second prong, “[p]rejudice may be measured in one of two ways: a
reasonable probability of a different outcome or a reasonable probability of a
different decision by the defendant.” Swinney v. State, 663 S.W.3d 87, 90 (Tex.
Crim. App. 2022). “Choosing between the two depends on the possible result of the
deficient performance.” Id.
In most circumstances, a defendant claims that his trial counsel’s deficient
performance resulted in a guilty verdict or a harsher punishment. See id. To establish
prejudice, the defendant must show that a reasonable probability exists that absent
the alleged errors, the factfinder would have had a reasonable doubt concerning guilt
or would have assessed a more lenient punishment. Id.
But where a defendant alleges that counsel’s deficient performance might
have caused him to waive a judicial proceeding he was otherwise entitled to, then
the defendant is prejudiced if a reasonable probability exists that the deficient
performance caused him to waive the proceeding. Id. (citing Lee v. United States,
582 U.S. 357, 364–65 (2017)). In this more limited circumstance, inquiring about
the possibility of a different outcome is the wrong prejudice standard because “we
cannot accord any presumption of reliability to judicial proceedings that never took
place.” Id. (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)); see Miller v.
8 State, 548 S.W.3d 497, 501 (Tex. Crim. App. 2018) (“[P]roving a better outcome
from a proceeding never had is so speculative as to be unworkable.”). Rather, “[i]n
that situation the focus is on the defendant’s decision making.” Swinney, 663 S.W.3d
at 90 (citing Lee, 582 U.S. at 366–67). “The different-outcome question is relevant
only to the extent that it sheds light on whether the deficient performance affected
the defendant’s decision making.” Id. (citing Roe, 528 U.S. at 486).
The Court of Criminal Appeals has repeatedly applied this measure of
prejudice to complaints that trial counsel gave bad advice about or misunderstood
the law concerning community supervision. See, e.g., id. at 90, 92; Miller, 548
S.W.3d at 498; State v. Recer, 815 S.W.2d 730, 731–32 (Tex. Crim. App. 1991). To
establish that trial counsel was ineffective for misunderstanding the law regarding
community supervision, “more must be apparent from the record than trial counsel’s
mere mistake.” Recer, 815 S.W.2d at 731. Rather, the record must show that (1) the
defendant was eligible for community supervision, (2) counsel’s advice regarding
community supervision was not part of a valid trial strategy, (3) the defendant’s
decision regarding community supervision was based on counsel’s erroneous
advice, and (4) the defendant’s decision would have been different if counsel had
correctly informed him of the law. Id. at 731–32; accord Swinney, 663 S.W.3d at
90–91; Miller, 548 S.W.3d at 501–02.
9 “A defendant is not entitled to errorless representation.” Dryer, 674 S.W.3d
at 647. Courts review ineffective assistance claims by considering the totality of the
representation. Id. The “ultimate focus” of the prejudice standard is “the
fundamental fairness of the proceeding whose result is being challenged.” Miller,
548 S.W.3d at 499 (quoting Strickland, 466 U.S. at 696). A single error will rarely
establish prejudice unless the error is “both egregious and had a seriously deleterious
impact on counsel’s representation as a whole.” Dryer, 674 S.W.3d at 647 (citing
Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013)).
B. Motion for Community Supervision
In his first issue, Vasquez argues that his trial counsel was ineffective for not
filing a motion for community supervision when Vasquez was otherwise eligible for
jury-recommended community supervision under Code of Criminal Procedure
article 42A.055.1 Vasquez argues that he was eligible because he did not have any
prior felony convictions.2 He argues that his counsel misunderstood the law on
1 Neither party addresses whether Vasquez would have been eligible for judge- ordered community supervision under article 42A.053, which does not require a pretrial motion. See TEX. CODE CRIM. PROC. art. 42A.053. 2 Vasquez also argues that he was eligible because the jury did not find that he used or exhibited a deadly weapon during commission of the offense. Lack of a deadly weapon finding, however, is not a condition for eligibility under article 42A.055. See id. arts. 42A.055, 42A.056. A deadly weapon finding does affect eligibility for judge-ordered community supervision under article 42A.053, but Vasquez does not base his appellate arguments on article 42A.053. See id. arts. 42A.053, 42A.054(b)(1). Vasquez is correct that the judgment does not contain a deadly weapon finding. See id. art. 42A.054(c) (requiring trial court to enter affirmative 10 community supervision as shown by his statement to the trial court that “if he
[Vasquez] was a citizen of the United States, that would make him automatically
eligible for probation if [he] went to trial and lost. Since he is not a citizen of the
United States and he has a previous deportation, he cannot accept a probation from
the State.” Vasquez contends that counsel’s failure to file a motion for community
supervision in this case is a “per se” violation of his right to effective assistance of
counsel.
The State responds that the record is unclear why trial counsel believed
Vasquez could not accept community supervision. But the State speculates that
community supervision could “lead to his immediate deportation” or he was
ineligible under article 42A.059 based on his prior deportation case.
Swinney, Miller, and Recer appear to govern Vasquez’s first issue. The
defendants in those cases based their ineffective assistance claims on their trial
counsel’s alleged bad advice about or misunderstanding of the law of community
supervision. Swinney, 663 S.W.3d at 92; Miller, 548 S.W.3d at 498; Recer, 815
S.W.2d at 731. Vasquez similarly complains that he would have been eligible for
community supervision but for his trial counsel’s failure to file a motion for
finding regarding defendant’s use or exhibition of deadly weapon or firearm in court’s judgment). Nevertheless, to the extent Vasquez also asserts that he was eligible for community supervision under article 42A.053, our analysis would remain the same that the record on direct appeal does not support this assertion. 11 community supervision on the apparently mistaken belief that his citizenship status
affected his eligibility for jury-recommended community supervision. The parties
did not brief this point, and we need not delve too deeply into these opinions to
resolve this issue.
Suffice it to say, “more must be apparent from the record than trial counsel’s
mere mistake” in the law governing Vasquez’s eligibility for jury-recommended
community supervision. See Recer, 815 S.W.2d at 731; see also Hart, 667 S.W.3d
at 782 (stating that ineffective assistance claim “must be firmly rooted in the
record”). For Vasquez to prevail, the record must show that (1) he was eligible for
community supervision, (2) trial counsel’s advice regarding community supervision
was not part of a valid trial strategy, (3) his decision not to ask the jury to recommend
community supervision was based on his counsel’s erroneous advice, and (4) his
decision would have been different if his counsel had correctly informed him of the
law. See Swinney, 663 S.W.3d at 90–91; Miller, 548 S.W.3d at 501–02; Recer, 815
S.W.2d at 731–32. On appeal, the parties dispute whether Vasquez was eligible for
community supervision.
Both parties present compelling, if underdeveloped, arguments concerning
Vasquez’s eligibility for community supervision. Vasquez relies on article 42A.055,
which authorizes a jury that imposes confinement as punishment for an offense to
“recommend to the judge that the judge suspend the imposition of the sentence and
12 place the defendant on community supervision.” TEX. CODE CRIM. PROC. art.
42A.055(a). Upon such a recommendation, the judge must suspend imposition of
the sentence and place the defendant on community supervision. Id. A defendant is
eligible for jury-recommended community supervision only if:
(1) before the trial begins, the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state; and (2) the jury enters in the verdict a finding that the information contained in the defendant’s motion is true.
Id. art. 42A.055(b). Article 42A.056 contains additional limitations on article
42A.055, including that it does not apply if the jury imposes a sentence exceeding
ten years’ imprisonment or if the defendant is convicted of certain offenses other
than burglary. Id. art. 42A.056. None of these additional limitations apply in this
case.
The record reflects that Vasquez’s trial counsel did not file a motion for
community supervision as required under article 42A.055. See id. art.
42A.055(b)(1). At a pretrial hearing, the trial court asked the parties about Vasquez’s
prior convictions. The State asserted that Vasquez did not have any prior felony
convictions, although it did note two other prior convictions: “only an immigration
deportation case and a DUI out of California.” Defense counsel added:
So the record is clear, Your Honor, if he was a citizen of the United States, that would make him automatically eligible for probation if [he] went to trial and lost. Since he is not a citizen of the United States and
13 he has a previous deportation, he cannot accept a probation from the State.
The trial court confirmed that Vasquez was “not probation eligible anyway from a
jury; is that correct[,]” and defense counsel responded, “[t]hat is correct.”
The State conceded at trial that Vasquez did not have any prior felony
convictions, which appears to be the only relevant potential restriction on his
eligibility for article 42A.055 community supervision other than counsel’s decision
not to file a motion for community supervision.
Although neither party addresses it, at least two courts have overruled
ineffective assistance claims based on counsel’s failure to file a motion for
community supervision where the record contained no sworn evidence that the
defendant was eligible for community supervision. E.g., Mercado v. State, 615
S.W.2d 225, 228 (Tex. Crim. App. 1981); Beyince v. State, 954 S.W.2d 878, 880
(Tex. App.—Houston [14th Dist.] 1997, no pet.); see also Hart, 667 S.W.3d at 782
(stating that ineffective assistance claim “must be firmly rooted in the record”).
Vasquez does not direct the Court to any sworn record evidence establishing his
eligibility for community supervision, and our own review of the appellate record
has not revealed any such evidence. See Strickland, 466 U.S. at 687 (stating that
defendant bears burden of proving both prongs of ineffective assistance claim).
Although the State conceded at the pretrial hearing that Vasquez did not have any
14 prior felony convictions, it did not assert that he was eligible for community
supervision, and it disputes this point on appeal.
But assuming without deciding that Vasquez was eligible for jury-
recommended community supervision, he has not established that no valid trial
strategy supported his counsel’s decision not to file a motion for community
supervision, that his decision not to request community supervision was based on
his counsel’s erroneous advice, and that his decision would have been different had
counsel correctly informed him of the law. See Swinney, 663 S.W.3d at 90–91.
Concerning trial strategy, Vasquez contends that the failure to file a motion
for community supervision is a “per se” violation of his right to counsel, but he cites
no authority supporting this contention. The State argues that the record does not
show why defense counsel believed Vasquez could not accept community
supervision. However, counsel told the trial court that Vasquez was ineligible for
community supervision based on his citizenship status, which is some record
evidence of counsel’s reasoning on this issue. The State also argues that the
deportation consequences of community supervision could have affected counsel’s
decision to forego a request for community supervision, but the State provides no
further analysis of this argument.
Based on the parties’ arguments and the circumstances presented here, it is
difficult to discern a reasonable trial strategy for not filing a motion for community
15 supervision, particularly when considering that Vasquez could later withdraw his
request if he determined based on counsel’s advice that the consequences
outweighed the benefits. See id. at 90 (stating that “focus” of prejudice inquiry in
these circumstances “is on the defendant’s decision making”). Nevertheless,
Vasquez did not afford his counsel an opportunity to explain his conduct and how
some unidentified strategy might have guided his decision not to request community
supervision. See Hart, 667 S.W.3d at 782.
Furthermore, Vasquez does not argue that his decision to forego a request for
community supervision was based on his counsel’s erroneous advice or that his
decision would have been different if counsel had correctly informed him of the law.
See Swinney, 663 S.W.3d at 90–91. Nor does the record reveal any evidence
supporting such an argument.
We conclude that Vasquez has not established on the record before us that his
trial counsel violated his Sixth Amendment right to counsel. Although he raises
colorable claims with minimal record support concerning his counsel’s decision not
to file a motion for jury-recommended community supervision, Vasquez’s claim is
not “firmly rooted in the record” such that we can conclude his counsel’s error was
more than a “mere mistake.” See Hart, 667 S.W.3d at 782; Recer, 815 S.W.2d at
731.
We overrule Vasquez’s first issue.
16 C. Evidence of Mitigating Circumstances
In his second issue, Vasquez contends that his counsel was ineffective for
failing to investigate and present mitigation evidence concerning Vasquez’s alcohol
and drug use. He argues that “this offense was related to [his] voluntary or
involuntary use of alcohol and drugs,” and “further testing” was required “to
determine how and to what extent this affected [his] mental capacity at the time this
offense occurred.” He further argues that such evidence should have been presented
as a mitigating circumstance during both the guilt-innocence phase and the
punishment phase of trial. See Wiggins v. Smith, 539 U.S. 510, 533 (2003) (“We thus
conclude that the available mitigating evidence, taken as a whole, ‘might well have
influenced the jury’s appraisal’ of Wiggins’ moral culpability.”) (quoting Williams
v. Taylor, 529 U.S. 362, 398 (2000)).
The State responds that the record on direct appeal is insufficient to overcome
the strong presumption that counsel’s performance was not deficient. It further
responds that even assuming counsel performed deficiently, Vasquez has not
established that the outcome of trial would have been different because both the jury
and trial court heard evidence about his alcohol and drug use during the guilt-
innocence phase of trial, including his contradictory testimony about whether he had
a “problem” with alcohol or drugs.
17 We conclude that Vasquez’s second issue is not “firmly rooted in the record.”
See Hart, 667 S.W.3d at 782. The appellate record does not indicate whether or to
what extent trial counsel investigated Vasquez’s drug and alcohol use and its effect
on the commission of the offense. See id. Vasquez did not give his counsel an
opportunity to explain his decision whether and to what extent to investigate
Vasquez’s drug and alcohol use. See id. Nor has he identified any evidence that
would have been uncovered by such an investigation. See Martinez v. State, 449
S.W.3d 193, 209–10 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (overruling
ineffective assistance claim where defendant “presented no specific indication of the
[mitigation and other] evidence that he claims should have been introduced by his
trial counsel, nor is there any indication that such evidence actually exists”).
At trial, Vasquez testified that he drank several beers and smoked
methamphetamine before burgling his neighbors’ house.3 As the State notes,
Vasquez testified inconsistently about whether he had a “problem” with alcohol or
drugs. Defense counsel told the jury during opening statements that Vasquez, “in a
3 The only other evidence in the appellate record concerning Vasquez’s alcohol or drug use is a competency evaluation report. This report, which was not admitted into evidence at trial, stated that his history “indicates alcohol substance use disorder,” and he “denied any recent drug use, including alcohol or cannabis.” Vasquez’s appellate brief mentions this report and asserts that the examining psychologist was not called to testify at trial. He also asserts that the report indicated “the need for further testing to determine how and to what extent this affected [his] mental capacity at the time this offense occurred.” However, this report does not provide any indication that trial counsel’s further investigation would have uncovered any mitigating evidence. 18 drunken idiotic stupor, goes to the wrong house . . . looking for his daughter.”
During closing arguments, defense counsel urged the jury to consider whether
Vasquez’s intoxicated state prevented him from forming the requisite intent to
commit a felony. Although the parties did not present additional evidence during the
punishment phase of trial, the trial court took judicial notice of the testimony and
evidence admitted during the guilt-innocence phase of trial.
“Voluntary intoxication does not constitute a defense to the commission of
crime.” TEX. PENAL CODE § 8.04(a). It is unclear what additional evidence
concerning Vasquez’s alcohol and drug use could have mitigated the jury’s decision
on guilt or the trial court’s decision on punishment. It is possible that trial counsel
decided that additional evidence of Vasquez’s alcohol and drug use would have
harmed his defense, and therefore we cannot conclude that counsel’s conduct was
so outrageous that no competent attorney would have engaged in it. See Hart, 667
S.W.3d at 782. Thus, we cannot conclude on the record before us that “no reasonable
trial strategy could justify trial counsel’s acts or omissions, regardless of his or her
subjective reasoning.”4 See id. (quotation omitted).
We overrule Vasquez’s second issue.
4 Based on our conclusion that the record does not establish deficient performance, we need not consider whether the record establishes prejudice to the defense. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to consider the other prong.”); TEX. R. APP. P. 47.1. 19 Legal Sufficiency of Evidence
In his third issue, Vasquez contends that the evidence was legally insufficient
to support the conviction.
A. Standard of Review
In a criminal trial, the State bears the burden to persuade the factfinder that
the defendant is guilty of the charged offense beyond a reasonable doubt. Baltimore
v. State, 689 S.W.3d 331, 340 (Tex. Crim. App. 2024). Evidence is legally sufficient
to support a conviction if a rational trier of fact could have found that the defendant
committed each element of the offense beyond a reasonable doubt. Id.; see also
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (“[T]he relevant question is 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.”).
Reviewing courts measure the sufficiency of the evidence by comparing the
trial evidence to the essential elements of the charged offense as defined by a
hypothetically correct jury charge. Baltimore, 689 S.W.3d at 341. A hypothetically
correct jury charge accurately sets out the law, is 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 charged. Id. The law authorized by the indictment consists of the
20 statutory elements of the offense as modified by the allegations in the indictment.
Id.
We consider the evidence in the light most favorable to the verdict and
determine whether, based on the evidence and reasonable inferences from it, a
rational juror could have found that the State has proven the essential elements of
the charged offense beyond a reasonable doubt. Id. The jury has “full responsibility”
to fairly resolve conflicts in witness testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Id. The jury may believe or
disbelieve some or all of a witness’s testimony. Vernon v. State, 571 S.W.3d 814,
820 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). A reviewing court considers
the cumulative force of all the evidence—both direct and circumstantial—to
determine whether sufficient evidence exists to establish each element of the offense.
Baltimore, 689 S.W.3d at 341; Vernon, 571 S.W.3d at 819.
B. Analysis
Vasquez argues that the evidence was legally insufficient to support the
conviction for second-degree burglary of a habitation.5 He acknowledges that both
Paz and Morales testified that he broke the glass on their back door and went inside
5 Vasquez argues on appeal that the evidence was legally insufficient to support both the charged offense of first-degree burglary and the lesser-included second-degree offense of burglary for which he was convicted. Because the jury found that Vasquez was guilty only of second-degree burglary, we do not consider whether the evidence would have been sufficient to sustain a first-degree burglary conviction. 21 their house, but he points to his own testimony that he did not enter the house. He
further argues that only Paz testified he had a gun and threatened Paz with the gun.
Morales denied seeing a gun or hearing any threats with the gun, and Vasquez denied
that he had a gun during the incident. From these inconsistencies, Vasquez concludes
that “[i]t stands to reason that if [Paz] is either lying or simply mistaken about Mr.
Vasquez having a gun and threatening to kill him, a rational trier of fact would also
be inclined to question the reliability and credibility of [Paz’s] testimony regarding
whether [Vasquez] actually entered his home after breaking a window.” Vasquez
thus contends that a rational factfinder could have found him guilty only of the
misdemeanor offense of criminal trespass.
The State responds that the jury reasonably could have believed the testimony
of Paz and Morales and disbelieved Vasquez’s testimony. We agree with the State.
Vasquez was indicted for first-degree burglary of a habitation based on his
entry into Paz’s house and commission or attempted commission of the felony
offense of aggravated assault with a deadly weapon. See TEX. PENAL CODE
§ 30.02(a), (d). The jury charge contained instructions on this primary offense and
two lesser-included offenses: second-degree burglary of a habitation based on
Vasquez’s commission or attempted commission of assault and misdemeanor
criminal trespass. The jury convicted Vasquez of second-degree burglary.
22 A person commits the offense of burglary if, without the effective consent of
the owner, the person enters a habitation or building and commits or attempts to
commit a felony, theft, or an assault. Id. § 30.02(a)(3); accord Morgan v. State, 501
S.W.3d 84, 90 (Tex. Crim. App. 2016). The offense is a second-degree felony if
committed in a habitation. TEX. PENAL CODE § 30.02(c)(2); see id. § 30.01(1)(A). A
person commits the offense of assault if the person intentionally or knowingly
threatens another with imminent bodily injury. Id. § 22.01(a)(2).
Vasquez does not dispute that he did not have the effective consent of Paz or
Morales to enter their house.6 See id. § 30.02(a). Instead, Vasquez challenges the
second and third elements of a burglary offense: whether he entered a habitation and
whether he committed or attempted to commit an assault.
The Penal Code defines “enter” as “to intrude: (1) any part of the body; or
(2) any physical object connected with the body.” Id. § 30.02(b). A person charged
with the offense of burglary “is guilty of that offense the moment that he crosses the
threshold of a habitation without consent and with the intent to commit the
underlying felony.” Morgan, 501 S.W.3d at 90 (quoting Langs v. State, 183 S.W.3d
680, 686 (Tex. Crim. App. 2006)); see Beasley v. State, 426 S.W.3d 140, 146 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (“The harm from a burglary results from
6 Morales testified at trial that she did not give anybody permission to enter her house on the night of the offense. 23 the entry itself, and the offense is complete once the unlawful entry is made without
regard to whether the intended theft or felony is also completed.”). As the State
points out, “entry” is established for purposes of a burglary offense “when the plane
of the opening of the house is broken, and [entry] may be accomplished by placing
a foot inside a door frame, by cutting window or door screens, or by breaking a door
lock or frame.” Martinez v. State, 304 S.W.3d 642, 660 (Tex. App.—Amarillo 2010,
pet. ref’d) (collecting cases).
Here, Paz testified that he saw Vasquez swing a guitar like a baseball bat at
the glass in Paz’s back door, and Vasquez eventually shattered the glass. 7 Paz also
testified that Vasquez “was inside” the house standing “in front of [Paz].” Morales
also testified that she saw Vasquez break the glass and step inside the house. The
trial court admitted into evidence photographs depicting the back door with shattered
glass and a hole large enough for a person to walk through. Vasquez, however,
testified that he stayed on the back patio and did not go inside the house.
Whether Vasquez entered the house therefore boiled down to whether the jury
believed Paz and Morales or whether the jury believed Vasquez. The jury was the
sole judge of the witnesses’ credibility and the weight to give their testimony, and it
7 Neither party relies on Vasquez striking the glass with the guitar or argues that the guitar broke “the plane of the opening of the house” to establish entry into the home for purposes of the burglary offense. Martinez v. State, 304 S.W.3d 642, 660 (Tex. App.—Amarillo 2010, pet. ref’d); see TEX. PENAL CODE § 30.02(b)(2) (defining “enter” to include “to intrude . . . any physical object connected with the body”). 24 reasonably could have believed Paz’s and Morales’s testimony that Vasquez entered
their house and disbelieved Vasquez’s contrary testimony. See Baltimore, 689
S.W.3d at 341–42; Vernon, 571 S.W.3d at 820. In determining whether the evidence
was legally sufficient to support a conviction, we consider the evidence in the light
most favorable to the verdict. See Baltimore, 689 S.W.3d at 341. The jury found
Vasquez guilty of second-degree burglary, and thus the jury found that Vasquez
entered the house. See TEX. PENAL CODE § 30.02(a)(3), (c)(2). Paz’s and Morales’s
testimony is legally sufficient to support the jury’s finding that Vasquez “crosse[d]
the threshold” of Paz’s and Morales’s home, thereby entering their habitation. See
Morgan, 501 S.W.3d at 90 (quoting Langs, 183 S.W.3d at 686).
Next, Vasquez argues that the evidence was legally insufficient to show he
committed or attempted to commit an assault during the burglary of a habitation. See
TEX. PENAL CODE § 30.02(a)(3). Vasquez argues that only Paz testified Vasquez had
a gun and threatened Paz with the gun. Morales denied seeing a gun or hearing any
threats with the gun, and Vasquez testified that he did not have a gun or make any
threats. We disagree with this characterization of Morales’s testimony.
At trial, Paz testified that when Vasquez entered the home, he had a gun that
he “was pointing at [Paz],” and he threatened to kill Paz. Paz described the gun as
black and small. Morales denied seeing a gun because she could not see Vasquez
well. In particular, she could not see his hands, which were in front of him and out
25 of her view. However, Morales testified that she heard Vasquez threaten to kill her
husband.8 Vasquez denied having a firearm or threatening anyone.
As with the conflicting testimony regarding Vasquez’s entry into the house,
the testimony conflicted whether Vasquez had a gun and threatened to kill Paz. But
again, the jury was the sole judge of the witnesses’ credibility and the weight to give
their testimony. See Baltimore, 689 S.W.3d at 341. Disregarding the testimony about
the gun, the jury reasonably could have believed Paz and Morales that Vasquez
committed an assault by intentionally or knowingly threatening to kill Paz, and it
could have disbelieved Vasquez’s contrary testimony. See Vernon, 571 S.W.3d at
820; TEX. PENAL CODE § 22.01(a)(2) (stating that person commits offense of assault
by intentionally or knowingly threatening another with imminent bodily injury). The
jury ultimately found Vasquez guilty of second-degree burglary, which based on the
charge, required the jury to find he committed an assault. Viewing the evidence in
the light most favorable to the verdict, Paz’s and Morales’s testimony that Vasquez
threatened to kill Paz is legally sufficient to support the jury’s finding that Vasquez
committed an assault by intentionally or knowingly threatening Paz with imminent
bodily injury. See Baltimore, 689 S.W.3d at 341.
8 Morales also testified that she heard “that he was pointing a gun at him [Paz].” This testimony is not clear whether Morales heard Vasquez say that he was pointing a gun at Paz or whether she heard someone else, perhaps Paz, say that Vasquez was pointing a gun at him. 26 To the extent Vasquez contends that the jury could have believed Paz or
Morales was lying or mistaken about Vasquez having a gun and threatening Paz, and
therefore the jury “would also be inclined to question the reliability and credibility”
of Paz’s and Morales’s testimony that Vasquez entered the house, we disagree.
The jury did not convict Vasquez of first-degree burglary, which as charged
required the jury to find that he committed or attempted to commit aggravated assault
with a deadly weapon. See TEX. PENAL CODE § 30.02(a), (d)(2). But the judgment
reflects that the jury did not make a deadly weapon finding, which indicates that the
jury did not believe he had a gun during the commission of the offense. The jury did
convict Vasquez of second-degree burglary, however, which means that it did
believe he assaulted Paz by threatening him. See id. §§ 30.02(a)(3), 22.01(a)(2). The
jury is the sole arbiter of witness testimony and credibility, and it alone may resolve
conflicts in the witness testimony, including believing or disbelieving all or part of
a witness’s testimony. See Baltimore, 689 S.W.3d at 341; Vernon, 571 S.W.3d at
820. Thus, the jury could have disbelieved the testimony that Vasquez used a gun
while believing the testimony that he entered the house and threatened to kill Paz.
We therefore hold that the evidence is legally sufficient to support the conviction for
second-degree burglary of a habitation by committing or attempting to commit
assault.
We overrule Vasquez’s third issue.
27 Conclusion
We affirm the judgment of conviction.
David Gunn Justice
Panel consists of Chief Justice Adams and Justices Gunn and Guiney.
Do not publish. TEX. R. APP. P. 47.2(b).