Christopher Cullen Weekes v. the State of Texas

Opinion filed July 25, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00289-CR
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CHRISTOPHER CULLEN WEEKES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR15656

MEMORANDUM OPINION
The jury found Appellant, Christopher Cullen Weekes, guilty of burglary of a
habitation with intent to commit assault. See TEX. PENAL CODE ANN. § 30.02(a)(1)
(West 2019). The jury also found that the two prior convictions alleged by the State
for enhancement purposes were true. The jury assessed Appellant’s punishment at
confinement for a term of fifty-three years in the Institutional Division of the Texas
Department of Criminal Justice.
In two issues, Appellant asserts that the evidence was insufficient to support
the jury’s verdict and that he received ineffective assistance of counsel because his
trial attorney did not request a jury instruction on a lesser-included offense. We
affirm.
Background Facts
Erath County Deputy Taylor Tully, who was a 9-1-1 dispatcher at the time of
the offense, testified that Janice Wood called 9-1-1 at around 9:30 p.m. on March
31, 2021, and told her that Appellant was yelling and “trying to bust through her
door.” Wood went into another room and told Deputy Tully that Appellant “was
continuing to bust through doors to get to her.” Deputy Tully testified that she heard
Appellant enter the room Wood was in and “heard the phone, what appeared to [her],
being broken, buttons pressed, [Wood] upset, [Appellant] yelling.” Appellant can
be heard yelling profanities on the 9-1-1 call recordings.
In a subsequent 9-1-1 call, Wood told Deputy Tully that Appellant pushed her
onto the bed in the room, took the phone from her, and broke it. Wood told Deputy
Tully that she was not injured. Appellant’s mother called 9-1-1 and told Deputy
Tully that Wood “fell back” on the bed.
Lieutenant Tye Box with the Erath County Sheriff’s Office testified that he
spoke with Wood shortly after the incident. Wood was “very upset” and “still
shaking.” Wood told Lieutenant Box that Appellant was yelling about his house and
that she and Appellant’s mother had locked themselves behind three doors. Wood
said that Appellant kicked each door down, found the women in the bedroom, ripped
the phone out of Wood’s hand and broke it, and “threw her down on to the bed and
was screaming . . . at his mom.”
Photographs of the damaged doors were admitted into evidence, as well as a
photograph of a broken phone. Lieutenant Box testified that Wood showed him the
phone and told him that Appellant broke it. Lieutenant Box also testified that the
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damage done to the three doors was consistent with someone forcing their way
through a door by kicking it or “throwing your body into it.”
Wood testified that Appellant’s mother, who had been living with Wood, went
outside to speak to Appellant on the night of the incident. Wood called 9-1-1
because she could hear Appellant yelling, and she was scared he would hurt his
mother. Appellant’s mother came into the house, locked the back door, the “kitchen
door,” and the bedroom that Wood was in. Wood said that Appellant “bust[ed] the
doorframe[s]” in the kitchen and bedroom. Wood testified that Appellant then
entered the bedroom and began screaming at her, forcing her to back up against the
bed. Wood said that she sat down on the bed and then laid back on the bed while
holding the phone. Wood testified that Appellant grabbed the phone from her hand,
threw it, and then left. Wood testified that Appellant did not injure her and did not
push her onto the bed.
Wood confirmed that she wrote a statement on the night of the incident stating
that Appellant grabbed the phone out of her hand, “shoved [her] down on the bed,”
threw her phone, and broke it. Wood testified that she told the truth about what
happened on the night of the incident, that she was telling the truth the “best [she]
can remember” while testifying, and that her memory of the incident was likely
better on the night it happened than it was at trial.
Appellant was sitting on a riding lawnmower outside Wood’s house when
responding officers arrived. Appellant was detained while officers completed their
investigation. Appellant did not have any weapons with him. Deputy Jake Bolin,
who worked for the Erath County Sheriff’s Office at the time of the incident, testified
that Appellant was “pretty mad” and told officers that his house was flooding.
Deputy Bolin went to Appellant’s home to see whether any flooding “was
actually happening.” Deputy Bolin found a bathtub that had been “stopped up” with
“pots and pans and all kinds of stuff” overflowing onto the bathroom floor. Deputy
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Bolin was unable to turn the water off because “someone had ripped off the [faucet]
knobs.” Officers had to turn off the water main with pliers to get the water to stop
flowing.
Analysis
Sufficiency of the Evidence
In his first issue, Appellant asserts that there was insufficient evidence to
support the jury’s verdict because “the State presented no evidence that when
Appellant first crossed the threshold into Wood’s house, he intended to cause
physical contact with Wood or that Appellant knew Wood would regard the contact
as offensive or provocative.” Appellant’s sufficiency challenge is limited to whether
he had intent to commit assault at the time he broke into Wood’s home.1
We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any rationa
trier of fact could have found the elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
When conducting a sufficiency review, we defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Brooks, 323 S.W.3d
at 899. This standard accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778

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Appellant concedes in his brief that he “broke through” locked doors and into Wood’s home.
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(Tex. Crim. App. 2007). When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly proves 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. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not
point directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
Because evidence must be considered cumulatively, appellate courts are not
permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the
evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead,
appellate courts must consider the cumulative force of all the evidence. Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
We measure sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). The hypothetically correct jury charge is one that
“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
tried.” Id.
As relevant to this case, a person commits a burglary if a person enters a
habitation without the consent of the owner and with the intent to commit an assault.
See PENAL § 30.02(a)(1). “[T]he gravamen of a burglary is the entry without the
effective consent of the owner and with the requisite mental state.” Ex parte
Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). “The offense is complete
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once the unlawful entry is made, without regard to whether the intended [assault,]
theft[,] or felony is also completed.” Id. A person commits simple assault when the
person: (1) “intentionally, knowingly, or recklessly causes bodily injury to another;”
(2) “intentionally or knowingly threatens another with imminent bodily injury;” or
(3) “intentionally or knowingly causes physical contact with another when the
person knows or should reasonably believe that the other will regard the contact as
offensive or provocative.” PENAL § 22.01(a) (West Supp. 2023). Here, the trial
court’s charge restricted the manner and means of simple assault to that contained
in Section 22.01(a)(3)—intentionally or knowingly causing physical contact with
another when the person knows or reasonably should believe that the other will
regard the contact as offensive or provocative. See id.
The factfinder may infer a defendant’s intent by his conduct. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Generally, intent is proven by
circumstantial rather than direct evidence. See, e.g., Hart v. State, 89 S.W.3d 61, 64
(Tex. Crim. App. 2002). Intent may be inferred by the acts, words, and conduct of
the accused. Id. Further, the events of a burglary may imply the intent with which
the burglar entered. Caballero v. State, 292 S.W.3d 152, 155 (Tex. App.—San
Antonio 2009, pet. ref’d) (citing Coleman v. State, 832 S.W.2d 409, 413 (Tex.
App.—Houston [1st Dist.] 1992, pet. ref’d)).
Appellant asserts that he “repeatedly made his intent known” when he “burst
into Wood’s home shouting his house was flooding and he needed help.” Appellant
further asserts that the State presented no evidence to rebut Appellant’s contention
that he forcefully entered Wood’s home in order to get help because the State did
not show that Appellant had any animosity toward Wood, or that he wanted to offend
or provoke Wood by touching her. The State responds that “[b]reaking through three
locked doors and immediately assaulting the person you claim you seek help from”

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allowed the jury to “reject the notion that Appellant did not intend to cause harm to
the victim at the time of entry.”
Appellant additionally asserts that he did not possess a weapon “showing his
intent to commit the secondary offense of assault.” We note that possession of a
weapon is not a required element of assault. See PENAL § 22.01. Thus, while
possession of a weapon might have been an indication that Appellant intended to
commit assault, the fact that he was not in possession of a weapon does not preclude
a finding that he intended to commit assault at the time of entry.
There is ample circumstantial evidence that supports the jury’s finding that
Appellant intended to commit assault when he entered Wood’s residence. The State
presented Wood’s testimony that (1) Appellant arrived at Wood’s house and began
yelling at his mother; (2) Appellant’s mother came inside the house and locked three
doors; (3) Appellant broke through all three locked doors; (4) Wood called 9-1-1
because she was afraid Appellant would hurt his mother; (5) Appellant entered the
bedroom Wood and his mother were in; and (6) Appellant grabbed Wood’s phone,
threw it, and broke it. The State also presented officers’ testimony that Wood said
Appellant pushed her onto the bed after he entered the bedroom. Further, the State
presented a 9-1-1 call that captured Appellant entering the room Wood and his
mother were in, Appellant screaming profanities, and the sound of Wood’s phone
breaking. Finally, the State presented a photograph of Wood’s broken phone.
Reviewing courts are required to consider the combined force of all the
evidence. Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012) (citing
Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011)). Viewed in the light
most favorable to the verdict, we conclude that there is sufficient evidence from
which a rational trier of fact could have concluded beyond a reasonable doubt that
Appellant committed burglary with intent to commit assault. See Jackson, 443 U.S.
at 319. We overrule Appellant’s first issue.
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Claim of Ineffective Assistance of Counsel
In Appellant’s second issue, he asserts that his trial counsel was ineffective
for failing to request a charge for criminal trespass which he contends is a lesser-
included offense of burglary. To establish that trial counsel rendered ineffective
assistance at trial, Appellant must show that counsel’s representation fell below an
objective standard of reasonableness and that there is a reasonable probability that
the result would have been different but for counsel’s errors. Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S.
668, 687–88 (1984)). A reasonable probability is a probability sufficient to
undermine confidence in the outcome of trial. Strickland, 466 U.S. at 694. There is
a strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance, and that the defendant must overcome the presumption that
the challenged action could be considered sound trial strategy. Id. at 689.
A claim of ineffective assistance of counsel “must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when
counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily
have an opportunity to explain his actions before an appellate court denounces
counsel’s actions as ineffective. Id. Without this opportunity, an appellate court
should not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim App. 2001)).
Here, while Appellant filed a motion for new trial upon which the trial court
conducted a hearing, the motion did not address his claim that trial counsel was
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ineffective for failing to request a charge on a lesser-included offense. Accordingly,
trial counsel has not had an opportunity to explain his reasoning for not requesting a
charge on a lesser included offense. Any situation in which the evidence at trial
entitles the defendant to a lesser-included offense instruction presents the defendant
with the strategic choice between seeking an acquittal or a guilty verdict on the
lesser-included offense. See Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App.
2010). The defense may reasonably choose an all-or-nothing trial strategy, in which
it seeks a verdict of acquittal. See id. at 781–82. Because an “all-or-nothing”
approach represents a valid trial strategy, defense counsel generally cannot be
ineffective for failing to request a jury instruction on a lesser-included offense. See
Grey v. State, 298 S.W.3d 644, 655 (Tex. Crim. App. 2009) (Cochran, J.,
concurring) (observing that because all-or-nothing defense is a valid strategic option,
“defense counsel is not ineffective for declining to request a lesser-included-offense
instruction”).
To establish a claim of ineffective assistance of counsel for failing to request
a lesser-included offense, an appellant must demonstrate he was entitled to the
lesser-included offense. Cardenas v. State, 30 S.W.3d 384, 392–93 (Tex. Crim.
App. 2000). In State v. Meru, the Court of Criminal Appeals held that criminal
trespass generally is not a lesser-included offense of burglary:
The definition of “entry” in Section 30.05(b) makes the showing of only
a partial entry by the defendant insufficient for a conviction of criminal
trespass. This same partial entry, however, is all that is needed to
support a burglary conviction. In other words, a burglary can be
complete upon only a partial intrusion onto the property, whereas the
lesser offense would require a greater intrusion. . . . Because criminal
trespass requires proof of greater intrusion than burglary, the divergent
definitions of “entry” will generally prohibit criminal trespass from
being a lesser-included offense of burglary.

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State v. Meru, 414 S.W.3d 159, 163–64 (Tex. Crim. App. 2013). The Court noted
that criminal trespass could be a lesser-included offense of burglary “if the
indictment alleges facts that include the full-body entry into the habitation by the
defendant.” Id. at 164. Thus, where, as here, the indictment alleges only that the
defendant entered a habitation without specifying full-body entry, an instruction on
criminal trespass is prohibited. Id. at 164 n.3; see Weed v. State, No. 05-21-00430-
CR, 2022 WL 3593137, at *4 (Tex. App.—Dallas Aug. 23, 2022, no pet.) (mem.
op., not designated for publication).
Here, the indictment alleged that Appellant “did then and there, with intent to
commit assault, enter a habitation, without the effective consent of Janice Wood, the
owner thereof.” Thus, the indictment did not allege facts to warrant a lesser-included
offense instruction on criminal trespass. See Meru, 414 S.W.3d at 164.
Accordingly, Appellant’s trial counsel’s performance did not fall below an objective
standard of reasonableness when he did not request an instruction on the offense of
criminal trespass because Appellant was not entitled to the instruction. See
Cardenas, 30 S.W.3d at 392–93; see also Thompson, 9 S.W.3d at 812. We overrule
Appellant’s second issue.
This Court’s Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

July 25, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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