Hurricane Harvey bore down on the Houston area in late August 2017. While
the storm inundated the area, much of the city was impassable and most businesses
were closed. The City imposed a nighttime curfew to keep people off the roads and
In the early morning hours of August 29, 2017, Houston Police Department
Officer J. Pirela was working a 12-hour shift in northwest Houston, his regular patrol
area. Early in his shift, Pirela received a radio dispatch alerting officers to individuals
in two vans, one white and one black, who were seen trying to loot stores on North
Shepherd Drive, not far from Pirela’s patrol area.
Pirela’s patrol route passed by a Walmart store near Silber Drive and Interstate
10. The store was closed because of the hurricane, and only management personnel
were reporting to work. The store’s inside lights were off, and several hundred
wooden pallets had been stacked as a makeshift barricade over the main entrance.
Pirela circled the store on the lookout for possible looters. On his third pass,
he noticed that the barricade had been disturbed and several pallets were scattered
on the ground. Pirela could see into the store through the gap in the pallets. He also
noticed a white van with its tailgate open parked in front of the entrance. Pirela
called for police backup units and waited nearby.
In-store surveillance video recorded at this time shows Gamelin picking up
about 16 television sets from a display and leaving them at the front of the store near
the entrance. Pirela saw Gamelin carrying large items out of the store and into the
waiting van. When Gamelin saw the backup units arrive with their emergency lights
activated, he ran back into the store and tried to hide. Officers found Gamelin in the
garden shop and arrested him.
Matthew Lacobie, a Walmart asset protection officer assigned to that store,
testified that the store was closed to the public and non-management employees the
day the incident occurred. In its direct examination of Lacobie, the State asked:
Q. Now, who is Ruben Uribarri? A. He is one of the assistant managers overnight. Q. And so, he’s one of the managers in charge of the store at nighttime; is that correct? A. That’s correct.
Q. And he would have been the manager in charge on August 29th, 2017, during the night shift hours? A. Yes. Q. And he is the person that has the right to tell people they can go into the store and not go in the store; is that correct? A. That’s correct. Q. On August 29th, 2017, was Wal-Mart open to the public? A. It was not. Q. Why was it closed? A. Due to Hurricane Harvey. Q. Not only closed to the public, was it also open to employees or was it closed to employees? A. It was closed to employees as well. Q. And did anyone have permission to be in the store at any time during these hours during Hurricane Harvey? A. No, they did not. Q. And so, if anyone were to force their way inside of the Wal-Mart store, would they have permission to be in there? A. No. DISCUSSION
I. Standard of Review and Applicable Law
In his sole issue, Gamelin contends that the trial court committed reversible
error in entering a judgment of conviction based on the jury’s finding because the
evidence is legally insufficient to show that he lacked effective consent to enter the
store. We review the legal sufficiency of the evidence by considering all the
evidence in the light most favorable to the jury’s verdict to determine whether any
factfinder “could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The reviewing court’s role is that of a due
process safeguard, ensuring only the rationality of the jury’s finding of the essential
elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d
866, 867 (Tex. Crim. App. 1988). We defer to the jury’s responsibility to fairly
resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from
the facts. Williams, 235 S.W.3d at 750. 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 reviewing the legal sufficiency of the evidence, we treat direct and
circumstantial evidence equally because circumstantial evidence is just as probative
as direct evidence in establishing the guilt of a defendant. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is “direct proof
of a secondary fact which, by logical inference, demonstrates the ultimate fact to be
proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984).
Circumstantial evidence alone can be enough to prove guilt beyond a reasonable
doubt. Clayton, 235 S.W.3d at 778; Powell v. State, 194 S.W.3d 503, 507 (Tex.
Crim. App. 2006).
The jury is responsible for drawing reasonable inferences from basic facts to
ultimate facts. Clayton, 235 S.W.3d at 778 (citing Jackson, 443 U.S. at 319). When
the appellate record supports contradicting inferences, we presume that the jury
resolved any such conflicts in favor of the verdict, even if not explicitly stated in the
record. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
A person commits the offense of burglary of a building if, without the
effective consent of the owner, the person “enters a habitation or a building . . . with
intent to commit a felony, theft, or an assault.” TEX. PENAL CODE § 30.02(a)(1); see
Morgan v. State, 501 S.W.3d 84, 90 (Tex. Crim. App. 2016). “Effective consent is
defined as assent in fact, whether express or apparent, and includes assent by a
person legally authorized to act for the owner.” Mims v. State, 434 S.W.3d 265, 273
(Tex. App.—Houston [1st Dist.] 2014, no pet.); see TEX. PENAL CODE
§§ 1.07(a)(11), (19), 31.01(3). An “owner” is a person who has possession of a
property or a greater right to possession of a property than the actor. TEX. PENAL
CODE § 1.07(a)(35)(A); Morgan, 501 S.W.3d at 91–92. Whether an accused had
effective consent to enter is “measured at the time of the accused’s alleged criminal
act.” Morgan, 501 S.W.3d at 92.
In contending that his conviction is not supported by legally sufficient
evidence that he lacked effective consent, Gamelin points to the failure of Uribarri,
the Walmart night manager, to testify, and thus the lack of direct testimony that
Uribarri did not give Gamelin consent to enter the Walmart. Gamelin relies on Byrd
v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011), as support for his argument that
Uribarri’s absence from trial means that the evidence is insufficient to show a lack
of effective consent.
We find Byrd inapposite. There, the State’s misdemeanor information alleged
that the defendant unlawfully appropriated property from its owner, “Mike
Morales.” Id. at 244. At trial, though, the State did not mention or proffer any
evidence concerning Morales or his connection to the Walmart from which the
defendant took the property. Id. at 253.
The Court of Criminal Appeals concluded that the State, having alleged that
Morales was the property owner, was required to prove that Morales had an
ownership interest in the property but failed to do so. Id. at 257. As a result, the
Court held that the evidence was legally insufficient to support Byrd’s conviction
and entered a judgment of acquittal. Id. at 258.
Here, in contrast, Asset Protection Officer Lacobie identified Uribarri, the
owner alleged in the indictment, as the night manager who would have been in
charge of the store when the incident occurred. Lacobie’s testimony makes this case
more analogous to Alex v. State, 483 S.W.3d 226 (Tex. App.—Texarkana 2016, pet.
ref’d). The Texarkana court of appeals in Alex held that the evidence was legally
sufficient to support the jury’s finding that the defendant lacked consent of the owner
even though the chain restaurant’s district manager—the owner alleged in the
indictment—did not testify. See id. at 229–30. The general manager, who did testify,
named the district manager and confirmed that he periodically came to the restaurant
to make sure “I’m doing what I’m supposed to be doing.” Id. at 228. As further
support for a finding that the defendant lacked effective consent, the appellate court
pointed to evidence that (1) the restaurant had terminated the defendant’s
employment a month before the burglary, (2) terminated employees do not have
consent to enter the restaurant while it was closed, (3) the defendant entered the
restaurant after it was closed by breaking a window, and (4) the defendant took
several hundred dollars out of the restaurant’s safe. Id. at 229–30.
As in Alex, the State in this case was not required to present Uribarri as a
witness or otherwise adduce direct evidence that Gamelin entered the Walmart
without the owner’s consent. The evidence showed that because of the hurricane, the
store was closed to the public. Lacobie confirmed that Uribarri was the assistant
manager in charge of the store on the night of the incident and attested that no one,
not even regular employees, had permission to be in the store that night.
The store’s inside lights were off, and stacks of pallets had been fashioned
into a barricade over the entrance. During his patrol, Officer Pirela noticed that some
of the pallets he had previously seen stacked had fallen on the ground, a white van
was parked in front of the store entrance, and the gap left open by the fallen pallets
led directly into the store. Pirela saw Gamelin emerge from the gap with store
merchandise, which he loaded into the open van. When Gamelin realized that the
police had discovered his activities, he ran into the store and tried to hide from the
On this evidence, we conclude that a rational jury could have found beyond
a reasonable doubt that Gamelin entered the store without the owner’s effective
consent. We therefore hold that the evidence is legally sufficient to support the jury’s
finding that Gamelin was guilty as charged.